Expert Witness Journal

COVERS ISS 20:Layout 1 12/07/2017 16:24 Page 1

ISSN 2397-2769

=

THE JOURNAL FOR INSTRUCTING PROFESSIONALS & EXPERT WITNESSES

MEDCO CHANGES

CHRONIC TRAUMATIC ENCEPHALOPATHY INDEMNITY - EXPERT DENTISTRY - RICS Vol 1 Issue 20 Summer 2017 UK £5.00 €6.00

COVERS ISS 20:Layout 1 12/07/2017 16:24 Page 2

Psy reports advert:Layout 1 12/07/2017 11:06 Page 1

Psychiatricreport.com PSYCHIATRY AND PSYCHOLOGY EXPERTS WRITTEN QUOTES WITHIN 24 HOURS

0121 661 6889

At Psychiatric Report we pride ourselves on providing you with the best suited expert consultant to meet the precise needs of your case. Instruct us and we will take care of all your requirements. We will liaise with you to ensure that the most suitably qualified expert Psychologist or Psychiatrist is allocated to your case. We will ensure that your report is delivered to you well within your deadlines and it addresses the precise issues of your client's individual circumstances.

Our panel of highly experienced consultants can provide expert reports for civil and criminal cases , employment tribunals, fitness to stand trial, family and child protection matters and other medico-legal issues. Please contact us and to discuss your exact requirements on 0121 661 6889 or visit our website www.psychiatricreport.com.

ISSN 2397-2769

=

THE JOURNAL FOR INSTRUCTING PROFESSIONALS & EXPERT WITNESSES

Welcome to the Expert Witness Journal

MEDCO CHANGES

CHRONIC TRAUMATIC ENCEPHALOPATHY INDEMNITY - EXPERT DENTISTRY - RICS Vol 1 Issue 20 Summer 2017 UK £5.00 €6.00

Hello and welcome to the 20th edition of the Expert Witness Journal.

In this edition we feature a wide range of topics including Dental-legal views, Psychology, RICS information and also the views of Banking and Financial Services and Engineering experts.

One of our main features examines how MedCo has changed the personal injury/trauma area, it is an excellent article and coincides with the news that MedCo has revised its rules and suspended over 130 companies. The aim of MedCo was to sever links between lawyers and the medics they instruct therefore, ensuring independent diagnosis and a duty to the court not the instructor. Unfortunately as many people suspected the scheme was open to abuse and 134 ‘shell’ companies were suspended.

MedCo’s most notable problems has been MROs creating dozens of extra companies to ensure they appear more often in the random searches, which offered lawyers a choice of one top-tier and six second-tier providers. Under the new rules, all aspiring MROs must prove that they are ‘directly and solely’ responsible for all work associated with receiving instructions, that they are independent, properly staffed and resourced.

Our next issue will feature catastrophic injury and international experts plus many general related articles, 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 Expert Witness Journal are of the authors and do not necessary reflect the views of Expert Witness or The Expert Witness Journal.

The publisher does not accept responsibility for advertising content. The information in this magazine does not constitute a legal standpoint.

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 2017.

Expert Witness Publishing Limited, Unit 1/06, Ivy Business Centre, Crown St, Failsworth, Manchester M35 9BG

EXPERT WITNESS JOURNAL

1

SUMMER 2017

News & Events

Cyber Security Experts Call for Upgrade in Defences In the aftermath of WannaCry, experts call for watchdogs to be split from snoopers The Government will urgently need to upgrade the UK’s cyber defences, academics agreed at a seminar this week.

spell serious problems. If encryption was banned, we’d all be incredibly insecure, overnight."

Labour’s former home secretary, Jack Straw, added his voice to the debate this week. In an article for the Daily Mail he wrote: “Back in 1999 when, as home secretary, I was putting together recommendations to bring intercept legislation into the start of the internet age, I proposed system of ‘third-party escrow’. My idea ran into such a barrage of opposition that I had to drop it.

Staged by the Institute of Legal Studies at University College London, it dealt with the aftermath of last month's WannaCry ransomware attack, which temporarily disabled IT systems in several NHS organisations.

Among the subjects on the agenda were the splitting of the National Cyber Security Centre from its parent body, Government Communications Headquarters (GCHQ), and the issues around attempting to follow official advice to ‘be vigilant’ and keep software up to date.

"In the intervening 18 years the internet has become far more extensive and sophisticated than anyone imagined, and my proposal now needs to be revived.”

Need an expert fast Call our free searchline on 0161 834 0017

“We need to get a lot better at giving security advice,” Dr Steven Murdoch of the university's Information Security Research Group told the event. Pointing out that telling people not to open emails is akin to telling them not to do their jobs, he said: “It is no good blaming victims of the crime especially when there’s nothing they can do.”

CALVERT CONSULTING Calvert Consulting provides advice and an expert witness service on nearly all mapping matters. Carl Calvert specialises in boundary and rights of way disputes in England and Wales, and in copyright and other Intellectual Property matters in 'Common Law' countries and the EU. Although the consultancy was established in 2001, Carl has experience as an Expert Witness since 1991, covering both Copyright and aspects of land law dealing with Boundaries, Adverse Possession, and Rights of Way (both private and public) in both the High and County Courts and experience as a Surveyor for nearly 35 years with the Ordnance Survey.

Murdoch noted that last month’s WannaCry attack was spread with a worm, not email phishing, and that the Windows vulnerability it exploited had been discovered by the US National Security Agency.

Stockpiling vulnerabilities

Services For Boundary and ROW matters • A measured land survey • Examination of deeds and plans • Examination of Land Registry Documents • Analysis of archival maps • Analysis of aerial and terrestrial photographs • Demarcation of boundaries and rights of way • Preparation of Land Transfer plans • A Civil Procedure Rules (CPR) compliant Expert's report • Advice prior to litigation • Copyright in maps & GIS’ matters • Examination of the maps • An opinion on the probable existence of copyright • Forensic Cartographic study • Cardiff University-Bond Solon Certificate as an Expert Witness • Experience as an Expert Witness in Common Law & Civil Law countries

"There are questions to be asked about the stockpiling of vulnerabilities by security agencies," the seminar heard. "They have two conflicting roles - to make us safer and to make us less safe in order to conduct surveillance. What is the appropriate trade-off?"

He called on the next Government to split the National Cyber Security Centre away from GCHQ and make the bodies responsible to different cabinet ministers.

There is a fear that any action will take the form of draconian controls on the web. Dr Tim Stevens, of King’s College London, said the prime minister’s threat to clamp down on encryption in the wake of the Manchester and London terror attacks "could EXPERT WITNESS JOURNAL

Email: carlcalvert@aol.com Mobile: 07786 438 213 Tel: 023 8086 4643 Fax: 0871 521 0057

2

SUMMER 2017

Contents

Some of the highlights of this issue PII - Flexibility is the way forward - by Jean-Yves Glig

page 9

The Computer says no - by Martin Berkeley

page 11

About APIL - by Brett Dixon APIL President

page 14

How has MedCo Changed the PI/Trauma Area - by Mr R Scott-Watson

page 17

Are the Courts Getting into the Hot Tub?, by Alison Somek & Nicholas Deal

page 24

Litigation Insights - Perspectives from a Midwifery Expert Witness

by Angela Cook

page 28

The Increasing Role of Primary and Secondary Plastic Surgery in Trauma Management - Ms Lena C Andersson

page 33

Permanent Makeup - by Dawn Cragg MBE

page 38

How Can Ultrasound Reduce Negligence Claims? - by Ekkehard Pietsch

page 42

Selecting an Expert Witness in Dentistry: The Pitfalls - by Toby Talbot

page 45

The Dental Psychological Interface - by Mary Downie

page 51

Psychological Trauma - by Joanna Beazley Richards

page 56

Impartiality of Expert Witness: Defining and Measuring this Construct

by Hugh Koch & Paul Elson

page 60

The Mental Capacity Act & Psychological Assessment: The Story So Far

by Dr Richard Maddicks

page 65

7 Tips for Finding the Right Psychiatric Expert - Dr Imran Waheed

page 70

Chronic Traumatic Encephalopathy: A Medicolegal Perspective

by Professor Upendra Mohan Chowdhary

page 73

Disability and its Effects are not Always Obvious - by Eddie Lamptey

page 78

The Dependable Expert Witness, Five Essential Factors to Consider

by Martin Burns

page 81

Simulation Governance for the Expert Witness - by Angus Ramsay

page 86

Hazards Associated With Water Quality in Closed Pipe Systems

by Dr Pamela Simpson

page 94

EXPERT WITNESS JOURNAL

3

SUMMER 2017

Events Courtroom skills - overview The witness box is a lonely place. Many expert witnesses feel they’re on trial, standing in the dock rather than giving independent testimony to assist the court. Often, experts are unfamiliar with this environment, as few cases go to a full trial.

Re:Cognition Navigating the Mind-field: Mild traumatic brain injury Following Re:Cognition Health's successful conference in October 2015 a follow up is scheduled for 12 Oct 2017 at the Pullman Hotel, St Pancras.

Starting 12 Sep 2017 09:30 in Manchester Starting 10 Aug 2017 09:30 in London Starting 19 Sep 2017 09:30 in London Starting 10 Oct 2017 09:30 in London

The events aims to be an update of medical knowledge in 2017 to understand: The aetiology, mechanism and structural changes in the brain in mild traumatic brain injury (mild TBI).

The effect of mild TBI on the functioning of the brain and mind.

The complex overlap with psychological trauma e.g. PTSD and psychiatric trauma e.g. depression/anxiety, experienced by individuals with mild TBI How to quantify the neurological, psychiatric and psychological sequelae of Mild TBI by measuring the microscopic disruption of functional brain networks.

The medicolegal and personal implications of early accurate diagnosis of mild TBI. Presentation of new and advanced neuroimaging techniques and related technologies to monitor and quantify objective evidence of brain injury and response to treatment.

Cross Examination Day - overview The Cross-Examination Day is a follow-on course to the Courtroom Skills Training.

This intensive cross-examination training course helps you as an expert witness to refine and enhance your performance, and to gain mastery of your presentation. You’ll be cross-examined on one of your completed reports, once in the morning and once in the afternoon. The second cross-examination is recorded.

Starting 11 Aug 2017 09:30 in London Starting 13 Sep 2017 09:30 in Manchester Starting 20 Sep 2017 09:30 in London Starting 11 Oct 2017 09:30 in London Civil Law and Procedure - overview As an expert witness involved in civil proceedings in England and Wales, you need to understand the basics of law and legal procedure. This helps you work effectively and confidently, and to comply with mandatory requirements.

Speakers: Dr Dilley, Consultant Neuropsychiatrist, Dr Allder Consultant Neurologist Dr MacSweeney CEO and Consultant Neuroradiologist Professor William Stuart Consultant Neuropathologist Dr Kirtley Thorton Consultant Neuropsychologist and Neurophysiologist www.recognitionhealth.com

Starting 14 Sep 2017 09:30 in Manchester Starting 12 Oct 2017 09:30 in London

Pro Sols - www.prosols.uk.com Expert Witness Professional Solutions provides learning that covers the entire litigation process.

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. No one else can offer this level of continuity in the delivery of learning.

Bond Solon - www.bondsolon.com Excellence in Report Writing - overview An expert witness’s report is a vital element in litigation. It must be clear, succinct, independent and well presented.

Many experts develop their own report-writing style or adopt other people’s. But they’ve rarely received constructive feedback from lawyers on what’s actually required from their written evidence.

Writing Evidence in Planning Appeals 18 Sep 2017 - 09.30-16.30 Speaker, Lynden Alexander Venue, London

Starting 09 Aug 2017 09:30 in London Starting 11 Sep 2017 09:30 in Manchester Starting 18 Sep 2017 09:30 in London

EXPERT WITNESS JOURNAL

4

SUMMER 2017

Events Writing Expert Reports – Introduction 02 Oct 2017 - 09.30-16.30 Speaker, Lynden Alexander Venue, London

Accompanying Handouts: We supply all participants with succinct practical take-away guides, which they can use on the day of their appearance, to remind themselves of all the key learning points.

For more information, please call Lynden Alexander on 020 7421 7476 or email him at lynden@prosols.uk.com

The Trainers who deliver this course: A Leading Barrister – 10 yrs minimum practising and training experience A Personal Communications Consultant, with Legal or Theatre background Upon request, we can provide a QC to be part of the course delivery team

RICS Rights of Light – Assessment & Calculation› Training London, 18 Jul 2017 This course will provide you with the essential knowledge required to differentiate relevant aspects in the rights of light legislation from the natural light used in the planning system.

+44(0)20 7 1010 350 info@assuretytraining.com

To find out more: t 024 7686 8584 w rics.org/expertwitnesstraining e drstraining@rics.org

Now located in Gray’s Inn TAE was founded in 1987 with the objective of providing, for the first time, a professional body for experts to establish and promote high objective standards.

The Academy of Experts

Into Court Date: 26 July Venue: The Academy Members: £295 Non-Members: £375 There is more than one ‘best’ time for this course. This course is designed for those starting their Expert careers although everybody benefits from honing their skills.

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

Assurety We help individuals and organisations, facing any form of questioning in front of any audience to give clear, confident and persuasive answers: if you are facing any type of formal questioning – such as in a Court, Tribunal or arbitration, at a Public Inquiry, before a Parliamentary hearing, or by a professional regulatory body – and whether as a Claimant or Defendant, as an expert witness or a witness of fact; or if you have an important media engagement, if you are about to give an important public speech, deliver a crucial business presentation or pitch.

Foundation Course Date: 18-19 September Venue: The Academy Members: £495 Non-Members: £650 It is best to attend this two day course before undertaking any Expert Witness work.

It would probably be prudent to attend this course before you accept instructions.

In all our courses not only will you watch a cross examination, you will also get to feel what it is like to be cross examined by a leading barrister on your real life experiences and not artificial role plays. But it is not just what you say, but how you say it that is key to effective evidence giving. That is why we have expert communication trainers on hand to take you through the theory and technique of effective communication, as well as critiquing your body language and tone when answering questions. Our courses involve no preparation from you beforehand.

Law & Procedure Date: 20 September Venue: The Academy Members: £295 Non-Members: £375 Expert Determination Date: 12-13 June Venue: The Academy Members: £495 Non-Members: £650 Expert Determination is a form of Alternative Dispute Resolution involving the use of an independent Expert to investigate the referred matters and to give his Determination which is binding on the parties.

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

Essentials Number of participants: 1 or 2 witnesses (though can accommodate up to 5 witnesses in one session).

Duration: Minimum course time 2 hours (1-2 witnesses) - for every additional witness you require to attend please add 30 mins.

Availability: Our 'out of hours' service means that we can deliver this course during the evenings and weekends should you request it.

Venue: We are able to deliver this course at the client’s premises, in a 4-10 person meeting room (depending on participant numbers).

EXPERT WITNESS JOURNAL

The Academy of Experts 3 Gray's Inn Square, London WC1R 5AH Tel: +44 (0)20 7430 0333 Email: admin@academy-experts.org Web: www.academyofexperts.org 5

SUMMER 2017

Impartial …. or Imprisonment!

by Paul Taplin FRICS - Head of Diales (Middle East) A recent unexpected amendment to the UAE Federal Penal Code is set to have a profound impact on those practicing as arbitrators or experts in a Country which has worked hard to position itself as a worldwide and regional hub for arbitration.

includes arbitrators and expert witnesses acting in private arbitral proceedings.

The requirement for committing the violation ‘knowingly’ has been removed presuming therefore that it can be performed ‘unknowingly’.

With effect from 29 October 2016, Article 257 has been amended by Federal Decree Law No 7 of 2016 to read as follows (this is an unofficial English translation):

The process for making a complaint (regardless of the merits) is to bring it to the attention of the Police. The recipient of such a complaint will likely have their Passport retained whilst the matter is being investigated. There is no timescale for the investigation to be carried out and completed and therefore even the most spurious of claims could see the recipient confined to the UAE for a considerable period of time until eventually acquitted.

“Anyone who issues a decision, expresses an opinion, submits a report, presents a case or proves an incident in favour of or against a person, in contravention of the requirements of the duty of neutrality and integrity, while acting in his capacity as an arbitrator, expert, translator or fact finder appointed by an administrative or judicial authority or selected by the parties, shall be punished by temporary imprisonment [defined under Articles 28 and 68 of the Penal Code to mean between 3 and 15 years].

The new amendment will be of particular concern to those acting as sole arbitrator as it is easy to see how a disgruntled party (of which there is always likely to be one) could use this as an unscrupulous tactic when on the receiving end of an award not in their favour.

The aforesaid categories of persons shall be barred assuming once again the responsibilities with which they were tasked in the first instance, and shall be subject to the provisions of Article 255 of this law." [emphasis added]

Indeed there have already been a number of arbitrators hearing cases seated in the UAE who have resigned from tribunals for fear of being subject to vexatious criminal proceedings.

So what about experts? In the majority of cases there are two experts (one appointed by each party) which would seem to make the test of appearing to be “… in contravention of the requirements of the duty of neutrality and integrity …” a little more challenging especially in instances where the experts are able to reach agreement on various items.

When contrasted with the previous version the differences can be seen (again this is an unofficial English translation): “An expert who is appointed by a judicial authority in a civil or criminal action, and who knowingly asserts a matter contrary to the truth or misconstrues such matter, shall be punished by detention for a period of at least one year, and shall be precluded from being an expert in the future.

But what about those instances where the opposing party appoints an expert who perhaps doesn’t understand, or indeed doesn’t wish to embrace, the independent nature of the role that experienced practitioners abide by? It seems feasible that where experts are not able to agree then there is an easy exposure to a claim regardless of how potentially unmeritorious it is. The problem however is that when accepting an appointment an expert might not know who is appointed for the other side and cannot therefore make a judgment call at the time of enquiry or engagement.

The expert shall be sentenced to temporary imprisonment if his mission relates to a felony.”

There are a number of key differences but perhaps the most important is that the duty now applies not only to experts appointed by a judicial authority (likely to be court appointed experts) but to anyone who issues a decision, expresses an opinion, submits a report, presents a case or proves an incident of favour of or against a person. This EXPERT WITNESS JOURNAL

6

SUMMER 2017

And what about a Jointly Appointed Expert? In this instance it seems as though the expert could have similar exposure to that of a sole arbitrator.

chance that the considerable effort put in over the past 20 years in establishing the UAE as a worldwide recognised hub for international arbitration is at serious risk of collapse.

Many practitioners are suggesting that there is an overreaction to the new amendment and that in practice it was rare for parties to file criminal proceedings under the previous code. However, prior to the recent amendment there were no specific grounds for bringing criminal proceedings against arbitrators or experts who were alleged to have been in breach of their obligations.

That said the UAE government has always taken positive steps to ensure the growth of arbitration in the region and will no doubt understand the concerns raised about the new amendment and the effect it may have on international arbitration in the country.

We therefore wait to see whether any of the current concerns are found to be justified and what measures, if any, the UAE government intends to take to remedy the situation.

It seems as though the mere threat of being on the receiving end of a claim has already been enough for some arbitrators to resign. If nothing else it will certainly make individuals think long and hard about the potential repercussions before accepting an appointment.

Paul Taplin FRICS Head of Diales (Middle East) Diales is part of the Driver Group plc and specialises in providing Expert Witness services to the global engineering and construction industry.�

The general perspective of the legal and expert community in the UAE is that the code needs to be amended in some way, and indeed a degree of lobbying of the relevant authorities has already begun. The feeling is very much that unless it is repealed, changed or clarified then there is a real

Never miss a copy of the Expert Witness Journal by purchasing a subscription, receive your copy direct from our printer.

Call 0161 834 0017 or email:admin@expertwitness.co.uk

Forensic Structural Engineer - Chartered Building Surveyor Expertise in;

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

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

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

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

5 Cheyne Close, Amersham, Buckinghamshire HP6 5LT

EXPERT WITNESS JOURNAL

7

SUMMER 2017

Medical Expert Falling Short

by Alec Samuels ing expert, signs a joint report, appears in court, answers the questions put to him. The conduct of the trial, the decision-making process, lies in the hands of the lawyers and must be left to them. The expert simply answers the question put to him. He must not be “evasive and prolix”. The lawyers decide what is and what is not relevant. The astute judge will usually give the expert the opportunity to explain a point which the advocates have not raised or might be thought by the expert to have misunderstood, but he should not seek to raise new issues. What the expert has to say should be set out in his report.

One might have thought that, with the Civil Procedure Rules part 35, frequent judicial admonitions by the judges in courts and in the law reports, the ready availability of quality books on how to perform professionally, and training courses provided by the Expert Witness Institute, the Academy of Experts and Solon and similar reputable bodies, the standards of performance by the expert would meet professional requirements. However, the criticisms by the judge of the expert in Watts v Secretary of State for Health [2016] EWHC 2835 (QB), [2017] Med LR 14, paras 49-72, make for sorry reading. The facts arose out of a gynaecological and obstetrics case involving dystocia, but the principles are universal.

Criticism of the other side Criticism of the other side, the report of the opposing expert, or anything put in cross-examination or by the judge, is perfectly legitimate, but must be scientifically justified. Unfounded criticism undermines credibility. The expert is not expected to be a universal omniscient authority: a perfectly acceptable answer is: I am afraid that point is outside my experience and expertise, so I cannot say.

Knows his subject The expert is not expected to be “the top dog” in his profession and speciality, but he is expected to be thoroughly conversant with his speciality in knowledge and experience and perhaps research and publication, to be of consultant or equivalent status and standing in the profession. His opinion is likely to carry weight amongst his professional colleagues. A thorough familiarity with medicine, anatomy, drugs, clinical practice, surgery, the guidelines, and the literature, goes without saying.

Change of mind There can be no objection in principle for the expert to change his mind if this is done in a responsible manner. The original opinion was carefully prepared. An open-minded flexible approach was brought to bear. New information emerged, perhaps as a result of discussion with another expert in the case. A sensible modification of the original opinion was made. The matter was promptly brought to the attention of instructing solicitors. No loss of credibility was suffered, indeed credibility might be said to be enhanced. Contrast this with the original careless report. On a vital point either no opinion was expressed or an inaccurate opinion. The change came at a late stage, perhaps not even until cross-examination in court. There was failure to accept the inaccuracy when it became apparent. No proper explanation was given for the change of opinion. Instructing solicitors were not informed, or promptly informed.

Credibility would be seriously damaged.

Textbook The expert relied solely upon one textbook, and that from the United States of America. The expert was aware of the UK textbooks, of which there were a number of leading examples, but did not refer to them. The expert must be familiar with the relevant leading textbooks and articles, and be up-to-date; and indicate, with evidence and reasons, where either reliance is placed upon them or criticism or challenge is being made of them. Bland reliance or rejection may be seen as unconvincing.

Standards and practice as of the relevant time Between the incident or event complained of and the trial of the case a considerable time may elapse, often years, and in the case of a child even many years.

Medical knowledge and practice change and advance all the time, but the standards for a duty of care are those applying at the time of the incident or event.

The expert should be aware of this, and be able to speak from experience of the clinical practice of the relevant earlier time.

Independent, objective, balanced, professional, fair Every reputable expert knows his duty. Never should the judge have to say of the expert that he was partial, or unbalanced, or misleading, or concealed or misrepresented inconvenient facts, or was unsound, or unconvincing, or unimpressive; or instead of assisting the case for the client he damaged the case for the client. © Alec Samuels, 2017

Answer the question The expert studies the papers, examines the patient, makes a report, discusses the matter with the oppos-

EXPERT WITNESS JOURNAL

8

SUMMER 2017

PII: ‘Flexibility is the Way Forward’ Consultation delayed as SRA considers lowering minimum cover, reports Jean-Yves Gilg The Solicitors Regulation Authority consultation on minimum professional indemnity insurance requirements initially slated for the spring will likely take place in the autumn to give stakeholders more time to consider all options, Solicitors Journal has learned.

super regulator gave the nod to the SRA’s more flexible approach but said further research was required before full approval could be granted.

The follow-up survey undertaken by the SRA showed that sole practitioners and small firms paid a disproportionate amount in PII relative to their turnover: 7 per cent for sole practitioners and 5.5 per cent for two-to-four partner firms. The percentage was lowest for five-to-ten partner firms (3.2 per cent) and 11-to-25 partners firms (3.9 per cent).

The regulator’s preferred model would be to retain a compulsory minimum, but set at a lower level of possibly £500,000, with firms expected to top up as required in light of their specific business circumstances.

SRA policy director Crispin Passmore said the present set of PII requirements applied to all firms in the same way even though their sizes and the range of services they provided were ever more diverse. ‘That means these requirements impact differently on different people. Some could require a lot less than what we require.’

Smaller firms have been increasingly concerned about the PII burden on their practice, especially in relation to run-off cover in the context of the forthcoming closure of the Solicitors Indemnity Fund in just over three years.

‘Flexibility is the way forward’, Passmore said, ‘We’re trying to work through the options, talking to firms and insurers – who provided the data for the research – and trying to understand the sort of flexibility they would like.’

Any change to the PII requirements would need the approval of the Legal Services Board. Last year the EXPERT WITNESS JOURNAL

9

SUMMER 2017

Passmore also noted that PII was a recurrent issue with a number of applications from new firms seeking authorisation from the SRA. ‘A handful of firms say they want to be SRA regulated but current PII requirements are way too much, especially where they already have significant indemnity cover from other activities, such as global accountancy firms or Financial Conduct Authority-regulated businesses.

Multidisciplinary partnerships and legal tech businesses are coming to us asking for something different.’

in after that. There is no indication at this stage that the SRA would do away with compulsory run-off and Passmore said none of the alternatives considered so far were entirely satisfactory.

‘The Law Society could, for instance, set up a mutual fund to cover the period after run-off has expired,’ he said, ‘but then there would be issues about access or selection; firms that could get good deals on the open market wouldn’t be interested in going into the mutual.’ If this analysis is correct, only firms with a higher risk profile would seek to obtain cover through this kind of mutual, potentially reviving the spectre of the now-defunct assigned risks pool.

Looking at other professions, Passmore continued, doctors aren’t required to have minimum indemnity insurance in place but only to have cover appropriate for their activity. That may be going too far for solicitors, he said, and the SRA Would probably still like to set a minimum amount.

Most of the difficulties in the regard are encountered by firms with a substantial conveyancing practice. On average, run-off cover is calculated as three times a firm’s annual premium. This often rises to five or six times where conveyancing is involved. For them, one possibility would be to have a specific premium applicable only to their conveyancing practice.

‘Most firms are already making their own assessment, but having no minimum may not be suitable. But £3m is too high, so we may end proposing perhaps £500,000,’ he commented.

‘Because of the complexity of these issues we’ll now not consult until after the summer,’ Passmore said, ‘but whatever happens, change is inevitable.’

Among the options would be the possibility of capping claims, with firms publicising their level of cover and clients being able to buy top up as a percentage of the bill.

This article was first published in Solicitors Journal on 25 April 2017 and is reproduced by kind permission (www.www.solicitorsjournal.com).

Run-off cover remains a sticking point. Currently the minimum is six years, with SIF potentially stepping

Mr Keith Borowsky

Mr Kim Neal Hakin

Trauma and Orthopaedic Surgeon specialising in Shoulder & Elbow Surgery

FRCS, FRCOphth

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

Mr Kim Hakin is a Consultant Ophthalmologist, providing a service both in the NHS and privately.

He undertakes medico legal work at; Optegra Eye Hospital Central London, 25 Queen Anne Street, London, W1G 9HT and The Nuffield Hospital, Taunton.

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:

His special interests include the management of cataracts, ocular trauma, eyelid and lacrimal surgery, including cosmetic eyelid surgery (blepharoplasty).

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

Mr Hakin holds the Expert Witness Certificate from Bond Solon/Cardiff University, is a member of The Expert Witness Institute. Also Expert Advisor to Nuffield Hospitals, and formerly to the Healthcare Commission, and regularly undertakes work for organisations such as the General Medical Council, Medical Defence Union, Medical Protection Society, NHS Litigation Authority, as well as many solicitors' firms and legal agencies.

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

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

Tel: 01823 250614 Mob 07887 651551 Email: kimhakin@aol.com, carolmatravers@gmail.com.

Web: www.kimhakin.com

Contact: Keith Adrian Borowsky

All correspondence to Nuffield Health Taunton Hospital, Staplegrove Elm, Taunton TA2 6AN, or by email.

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

EXPERT WITNESS JOURNAL

10

SUMMER 2017

‘The Computer Says No’ – The Challenges and Opportunities of Technology and Banking Banking and Financial Services Expert, Martin Berkeley, considers the impact of technology on banking, regulation and individuals. systems (e.g. ‘BlockChain’ technology) or ‘robo-advice’. The rise of ‘Fintech’ (financial technology firms) presents both a threat and opportunity for banks and their ability to meet the preferences of the ‘Millennials’. IT system upgrades are also not without risks – get these wrong and not only may you end up wasting money, but also losing customers and suffering ‘brand damage’.

‘‘The computer says no’- a comedy phrase that has entered common parlance, summarises the first thought people have when they think of computers and banks. Banks and other financial institutions are, in reality, computer companies that process financial data. They have huge IT spends and employ many people in related functions.

Banks were early investors in computing - largely to automate processes and manage the vast amounts of data they produce and communicate. These legacy systems are now a burden as the skills needed to maintain the systems are in short supply; the long-retired programmers having used an archaic computer language. In terms of IT spend, just maintaining their legacy system takes up 75% of Deutsche Bank’s IT budget, with the remaining funds being fought over for implementation of new regulations and innovation.

Fintech is essentially the application of technology to the finance sector, to create a disruptive business model. Other industries have seen this occur; for example the music industry with the growth in online music and digital downloads. The travel industry with online booking and dynamic pricing, and the taxi industry with the rise of Uber type services.

These changes are characterised by new business models, innovation facilitated by technology and ultimately a better customer experience. The aim being customers receive the goods or service quicker, cheaper and efficiently than with existing providers.

Additionally, the Fintech challengers do not have the

Effective use of IT can automate internal processes and save costs (typically 8%) and streamline payment EXPERT WITNESS JOURNAL

11

SUMMER 2017

I lent back? Banks have developed sophisticated credit systems to assess, manage and price this risk.

The interest rate you pay on a loan is a function of the perceived credit risk. But, what if your social media usage were a better predictor of credit risk than the traditional methods?

baggage of legacy systems and perhaps out-dated corporate working methods. They are nimble, commercial, and able to exploit opportunities – in the finance world, they are a headache for banks.

The rise of Fintech has proved attractive for investors, with significant investments being made by venture capital firms (though Europe lags far behind the USA in this respect). Banks have started to invest in Fintech, but again levels of investment are comparatively modest.

Facebook is a huge gatherer of user data and already tailors advertisements based on your usage and preferences. What if Facebook used the data they held on you to approve or decline loans to you? In 2015 Facebook was granted a patent to do exactly this: ‘When an individual applies for a loan, the lender examines the credit ratings of members of the individual's social network who are connected to the individual through authorized nodes. If the average credit rating of these members is at least a minimum credit score, the lender continues to process the loan application. Otherwise, the loan application is rejected’.

There also remains the issue of implementation.

Banks are naturally conservative and there may be cultural, regulatory and organisational barriers to accepting new working methods.

A good example of Fintech innovation is in the payments area. Traditionally banks have relied on bulk (batch) processing of payment messages. There may be hundreds of legacy systems, all of which may not work well together, and there is no single customer view. This leads to slow and expensive payment systems when customers want fast, low-cost and above all- easy to use (and of course secure) payments. Most bank transfers used to take at least 3 days, but this is now within two hours for Fastpay systems. However, Fintech challengers have entered the payments area and eroded the bank’s market share. Notably some of the new competitors are not banks at all, but technology companies – like Apple with ApplePay or Paypal and notably the virtual currency Bitcoin.

In the UK, the car insurance company Admiral launched a product (www.firstcarquote.com) using social media posts to price car insurance. The concept was to use an algorithm, which measured and scored personality traits based on your Facebook behaviour.

However, concerns about the use of personal data caused Admiral to delay the project launch and radically redesign the process using only a small and less personal Facebook data set. Naturally this raises a number of issues regarding privacy and personal data.

Personal data is a valuable commodity. We ‘leak’ it everywhere through social media interactions and companies we interact with and we give it away for free for companies to profit from. For banks it is, ‘more treasured than the bullion in its vaults are the data a bank has stored on its servers’. The selling of personal data is an important revenue stream and the analysis and manipulation of personal data is used to customise and provide new products and services.

The London Stock Exchange derives 37% of its income from data products.

Bitcoin is based on a technology known as Blockchain. Essentially, this is a method of organising and sharing data in a dispersed manner, known as a mutually distributed ledger. The aim is to create a single version of the truth (i.e. all parties agree that the data is correct). Conventional ledgers are held by different parties and may differ- and the reconciliation process can be expensive. The aim of the Blockchain approach is to create incentives for honesty and transparency. The lack of central control has, however, led to concerns about its role in money laundering and potential effects on the stability of the financial system. Blockchain technology could also be used in other areas such as property transactions and have received significant attention and investment from some banks.

You agreed to this in the terms and conditions you signed up to. Or maybe you didn’t read them? Most people don’t, but perhaps they should. On 1st April 2010, the computer game provider Gamestation inserted a clause into its End User Licence Agreement (EULA). 7,500 customers agreed to the new terms, a handful spotted the amendment and they were given a voucher. The new clause stated: ‘By placing an order via this web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non-transferable option to claim, for now and for ever more, your immortal soul’. Literally you were selling your soul. Gamestation did this as a prank, but also to make a wider point about the im-

The entry of non-banks to the banking arena creates new dynamics in the industry. Banks traditionally lend money as their core business. Now, new lenders have appeared, peer-to-peer lending is an established alternative funding mechanism- offering alternative sources of finance. Behind these new players there is course technology, innovation and change of business model, though some essentials do not change. In lending, this is the key question – will I get the money EXPERT WITNESS JOURNAL

12

SUMMER 2017

being unauthorised to do something, such as unauthorised access or acts. This creates considerable flexibility in the law as it may be applied to technologies not yet invented. However, it may also create conflicts. If you steal some information via a computer is this unauthorised access or a theft? The existing law may need to be flexible and reinterpreted in respect of data protection.

portance of terms and conditions. You may find that the many terms and conditions you have agreed to without reading have committed you to giving away personal data, not only for you but also your descendants. The DNA profiling service sold by Ancestry.com asks for perpetual rights to your DNA and hence your descendants.

Terms and conditions are of course part of a contract and they are bidirectional and binding on parties. Institutions, companies and organisations are also bound by the contracts and this can have unintended consequences. Dmity Agarkov amended the terms of a credit card he was sent by a Russian bank Tinkoff Credit systems. He removed all commissions and changed the interest rate from 45% to zero, unlimited credit line, as well as adding in large penalty clauses should the bank cancel or violate the agreement. He signed and returned the form to the bank, which then sent him a credit card. The bank ultimately cancelled the card but was served with a claim for $730,000 from Agarkov. The defence of not reading the contract – often used by customers did not help the bank and Agarkov won his case in court.

Innovation is not new in financial services, however the rise of new technologies has hastened the pace of change and enabled new business models to develop.

These threaten the traditional banking business model, as well as our understanding of the value of data- and causes existing legislation to be stretched to cope with problems that didn’t previously exist.

Inevitably regulation is slow to respond to rapid change, but perhaps taking a considered view is beneficial. Despite the rapid changes introduced by technology, some things don’t change in financial services: the need to move money, make investments, know what is being sold, manage the risks and of course, look after clients better. Computers can also help you say yes!

The question of contracts and the law is relevant when considering the impact of new technology. The Computer Misuse Act [1990] is the major piece of law that attempts to regulate the use of computers. It does not define a computer, but rather describes the nature of prohibited activity. These are mostly of

WELCOME TO CORVINUS CAPITAL Finance, banking & regulatory consultancy with strong research focus. Experienced expert witness and litigation support services.

We analyse investments, products and processes, supporting conclusions with research. In expert work, most cases are settled by negotiation and we can act as advisors or experts for both Claimants and Defendants, giving fair and unbiased evidence. Insufficient due diligence can be a costly mistake and knowing what you are really buying can be a sound investment. Our favoured style is not esoteric theoretical arguments, but clear explanations and pragmatic dispute resolution. We are experienced in the litigation requirements of CPR Part 35 and have experience of both civil and criminal courts.

Our areas of expertise include; Derivatives, Interest Rate Swaps, Currency Options, FX, LOBOs, Wealth Management and Private Banking, Structured Products, SIPPS, Investments, Calculation of investment losses, UCIS / NMPI, FSA/FCA Conduct of Business Rules, Financial Regulation, Banking and Due Diligence Martin Berkeley BSc, BA (Hons), IMC, Chartered MCSI Martin has acted in excess of over 100 financial mis-selling cases for both Claimants and Defendants as single or joint expert, in matters relating to investments, wealth management, banking derivatives and regulation, advising some of the UK’s leading lawyers. He also holds the Cardiff University Law School/Bond Solon Civil Expert Witness Certificate and regularly lectures on finance related topics. He is familiar with trial procedures, cross examination and Court conduct. Martin is a Chartered Member of the Investment and Securities Institute and has additional qualifications in financial derivatives and investment management. He is completing an LLM in International Financial Regulation, and his thesis focuses on financial advice and suitability.

He was named Financial Services Expert of the Year in 2016.

Email: Martin.Berkeley@Corvinuscapital.com Tel: 020 8133 1050 - Mobile: 07743 816901 Website: www.Corvinuscapital.com Twitter: @Corvinuscapital

EXPERT WITNESS JOURNAL

13

SUMMER 2017

About APIL

by Brett Dixon APIL president APIL exists to fight to preserve the rights of people who are injured by negligence. I feel very strongly that preserving the rights of injured people should be the concern of every member of society. Those doing the groundwork for injured people are personal injury practitioners, many of whom are APIL members.

Campaigning Over the last 27 years, the association has grown to become the leading, most respected organisation in the field. We approach the need for redress in the legal system with tenacity and persistence.

For example, it took six years of lobbying and legal battles before finally, the discount rate for personal injury claims was changed earlier this year. For too many years, the discount applied to the damages of the most severely injured people did not reflect the economic climate. The compensation needed to care for these people would run out, unless they managed to gamble successfully the compensation on risky investments which no-one should have to do. Now that the way in which the rate is calculated is under scrutiny, one of APIL’s top priorities is to persuade the Government that the formula we have for deciding the rate is fair and accurate. It is functional,

The association was established in 1990 by a group of barristers and solicitors who wanted to give injured people a voice. Today, our 3,000 members are dedicated to making a tangible difference to the lives of injured people. APIL campaigns for improvements in the law, promotes safety so that needless injuries can be prevented, trains its members to develop expertise in the field, and provides a communication network for its members. We believe passionately that victims of negligence deserve committed, well-trained lawyers to support their right to justice.

EXPERT WITNESS JOURNAL

14

SUMMER 2017

Benefits of membership include a network of information including online forums and information exchange and subsidised training courses, as well as business support services such as the directory of experts. APIL has a network of 15 regional groups which meet regularly and provide a platform for networking. The same goes for our 15 special interest groups, where specialists in transport claims, or abuse claims, for example, can meet, network, and exchange information.

of course, so long as a review of the rate is performed regularly. The fact that the rate plummeted when it was finally reviewed after 16 years demonstrates that it was very overdue. It has been a hard-fought battle to keep the focus on the fact that the people the rate affects are suffering life-long, life-changing injuries.

Insurers have got away with undercompensating this vulnerable section of society for too long.

We campaigned for many years for a fund of last resort for workers who could not trace the insurers of the employers who had injured them. The scheme for mesothelioma victims was finally introduced in 2013. This campaign was fought alongside colleagues from charities and unions. APIL has a policy of working with like-minded people and organisations in its campaigns, and is privileged to do so. It does not go far enough, however, and we now have the task of working towards a scheme which ensures all workers who are suffering illness but cannot obtain compensation are supported.

Our members also carry out 2,000 online expert witness searches every month on APIL’s directory of experts. We have more than 700 experts in the directory, covering more than 280 categories including orthopaedics, health and safety, and psychiatry.

The APIL accreditation scheme was established in 1999. Members can gain individual accreditation or an accreditation for their firm. Injured people can look out for the “APIL accredited” quality mark so they know that the lawyer they choose has expertise and experience, and their best interests at heart.

APIL also stands up and intervenes where it needs to, as ensuring that the nuts and bolts of the system work for injured people is essential. APIL’s intervention in Qadar v Esure, for example, helped to make sure that cases which come out of the claims portal and into the multi-track are not subject to fixed costs. Our intervention in Broadhurst v Tan helped to ensure that if a claimant beats his own offer to settle, he is not subject to fixed costs. The case also has wider implications for the control of bad behaviour. Our intervention in Yates v HMRC and APIL was about safeguarding the smooth running of the most serious asbestos-related disease cases by ensuring that families of deceased employees could obtain details of work histories.

To be accredited, they must satisfy specific and extensive criteria providing evidence in their competency and experience in handling personal injury claims. Many accredited members specialise in a particular type of claim such as clinical negligence, brain injury, spinal cord injury, asbestos disease, occupational illness and overseas injuries and illnesses. We have developed competency standards for these areas, and members who are already accredited can apply for one of the specialist standards.

Training The association runs its own programme of more than 120 training events nationwide in subjects ranging from advanced clinical negligence updates to dental negligence. We also run specialist conferences, including those on elderly client care, military claims, child abuse claims, and brain and spinal injury. The association is also running an increasing number of webinars, so members can continue their training, and keep up with the requirements of their accreditation, without leaving the office.

The association’s work spreads across all UK jurisdictions. Our work in Scotland has been a marathon rather than a sprint, which is often the case. APIL has made regular contributions to the legislative process for years. Pre-action protocols are now compulsory for personal injury claims north of the border, for example. This is the result of work on the Civil Courts Review. While we were ultimately unable to change the direction of the resulting legislation to increase the Sheriff Court limit from £5,000 to £100,000, many other narrower arguments were successful and make a big difference to the way in which cases are won.

I am involved personally in delivering some of that training. Ensuring those who represent injured people have the most up to date and relevant skills possible complements all the other work APIL does to support the needs of injured people and their families.

Membership and accreditation Running along the backbone of APIL are training and membership services, which are all about making sure the people on the ground, the lawyers, are doing the best possible job for injured people.

Promoting best practice In every case, APIL’s members are encouraged to consider whether rehabilitation is appropriate. The aim is for members to recognise that in order to achieve the best possible outcome for an injured

All APIL members subscribe to a code of conduct and consumer charter, to reassure people about the service they can expect from members.

EXPERT WITNESS JOURNAL

15

SUMMER 2017

person, it usually means seeking rehabilitation as well as financial compensation.

The future for injured people Injured people have many challenges facing them.

At the time of writing, APIL is ready for the Government to resurrect reforms to whiplash claims, and also proposals to extend the small claims court limit for road traffic injuries.

Research has shown that in many cases rehabilitation can help injured people recover more quickly, have a better quality of life and return to work sooner. Rehabilitation can be the key to returning the injured client to the same position in which he would have been, were it not for the negligence of the defendant.

The association’s crusade for reform of the law on bereavement damages will continue, as well as that for reform on the law on psychiatric harm. The law on both issues is are outdated and restrictive, and fails to reflect modern society.

APIL developed the Rehabilitation Code to facilitate dialogue and collaboration between claimant lawyers and insurers in negotiating rehabilitation services for claimants. The injured person is put at the centre of the process and the need for rehabilitation is addressed as a priority. The code expects the claimant’s lawyer and compensator are to work together on a collaborative basis to address the injured claimant’s needs from the very beginning, with an expected early notification of the claim and exchange of information.

The appetite for a fixed recoverable costs regime continues and APIL is working to make sure any change is workable. There is far more at stake than the numbers. A system must be efficient before cases can run effectively, and fairly, in a fixed costs environment. For example, the cost of clinical negligence claims will never fall unless the NHS Resolution’s bad practice is brought under control. It is pointless to impose fixed costs for clinical negligence work without fixing the process first.

APIL has been working with the Forum of Insurance Lawyers and a number of key insurers over the last ten years to put a process in place for dealing with higher value cases that encourages collaboration resulting in continued liaison, case planning, and the narrowing of issues in dispute. The result of this joint work is the Serious Injury Guide. The introduction of cost budgeting recognised that costs is not a ‘one size fits all’ model, and the Serious Injury Guide tackles poor behaviour and in turn controls cost.

And we will continue to provide top quality training courses so our members are ready for whatever their clients must face.

For more information, visit www.apil.org.uk Follow APIL campaigns on Twitter at @APIL and APIL training at @APILtraining.

Mr Shahid Khan MA (Cantab) FRCS (Tr&Orth)

Consultant Orthopaedic and Spinal Surgeon

Provides 400 medico-legal reports a year on all areas of personal injury specialising in trauma and orthopaedic injury, back pain and whiplash injury. Provides clinical negligence reports within the field of Spinal Surgery

EXETERSPINE The Avenue, Brampford Speke, Exeter, Devon EX5 5DW Tel: 07779 238366 Fax: 01242 708192 E-mail: karen_street_khan@yahoo.co.uk Web: www.oceanphysio.com Consulting rooms/appointments available in Bristol, Exeter and Plymouth

EXPERT WITNESS JOURNAL

16

SUMMER 2017

How has MedCo Changed the PI/Trauma Area

by Mr R Scott-Watson BSc(Hons) MB BS LLB (Hons)(Open) Cert Av Med. Cert MR(2)CUEW DDAM FRCS(Ed) When looking at any change in the system for PI cases it is important to pick out the positives to see what can be learnt from those. With MedCo the most positive aspect to come out was a very good training system for experts, who all have to have passed the course in order to continue working in the system.

It is regrettable that with the MedCo system the positives stop there. A training scheme without adequate audit is only as good as the rest of the system it is functioning in. It is no use having a system where, having passed the training, the quality of subsequent reports is not monitored. Equally, although timings of reports have to be entered on the MedCo system, no check as to how many ’20 minute’ appointments are being put into each hour by individual experts appears to be being undertaken. I am well aware of several GP Experts who will put over sixteen such appointments in an hour, and still do so.

Another fundamental problem is present in the system. Assumptions are made which are quite

unjustifiable but will skew the entire process. The assumptions start with ‘there was an accident so there must be an injury’ through ‘this was an RTA so there must be a whiplash injury’ on to ‘a whiplash injury causes disability’. In fact, just because there was an accident there does not have to be any injury at all, and if there is one it could be very minor. The whiplash mechanism is specifically a rear end impact, impacts from other directions may injure but should not be classed as WAD. Many WAD injuries do not cause disability, only impairment and often minor. Any process that cannot pick out such cases will fail.

The MedCo system of assessing these injuries is a process that cannot distinguish the injured from the uninjured.

Prior to the training we had the RTA 3 form. It had the appearance of a form written by someone who had never undertaken this type of examination and puts items in the wrong order. Apart from that the form gives suggestions as to content but no minimum content is obligatory – the result is that some reports

there had been an Accident and Emergency attendance but those notes had not been made available.

For my report I insisted that they were. The original claim was a minor road accident at work but the A&E notes indicated an injury occurring after work when on a night out in which the claimant had become somewhat intoxicated. A clear example of the severe weakness of the current system.

are very sparse. The bigger problems with these initial examinations ( I see well over 500 of these reports per year when conducting secondary assessments) is that they are very rarely undertaken with the full medical notes – most are done with none, and as such are largely written by the claimant.

I have yet to see a single one of these reports that later proved to be an accurate representation of the initial symptoms and disability. The most common errors are to record that initial symptoms were severe (they are nearly always reported as such) but failing to note that the disability claimed or medication taken nowhere near fits that description, being much less.

The problem here is that most experts have no training in disability and therefore have limited ability to relate claimed symptoms to claimed disability.

Medical Reporting Agencies are a necessary part of the process as it is set up, but they are also part of the problem. The fee for an initial report, set at £180, is entirely reasonable but for those who are not set up as Direct Medical Examiners, they will take these initial cases through an agency. The Agency will do a small amount of the work but will take a far greater percentage of the fee – normally well over 50%, sometimes very much more, for what at best could be 10% of the work. The inevitable consequence of a system set up like this is that appointment times shorten and quality massively reduces. This is the entirely unregulated system that we now have. Fortunately it was eventually noticed that numerous ‘Agencies’ suddenly popped up out of thin air once MedCo started, but many seemed to be operating from the same office.

Although this has reduced it has not stopped.

In addition, examinations are very rarely complete and conclusions rarely taken from the information given, which is necessarily very incomplete when no contemporaneous notes are examined. I have yet to see one of these reports that identifies this as a potential problem sufficient to defeat the report entirely if those records were to be examined.

Questionnaires are commonly used by GP Experts prior to interview and are filled in by the claimants.

The information is then transferred to a computer program by the expert but without detailed examination of the contents.

So what we had was a system that was broken from the outset. The introduction of training was too slow and the subsequent lack of audit has made the training almost meaningless. The Agencies having a hold over a large proportion of the cases has reduced fees for experts and, especially in the GP Expert market, led to ridiculously short appointment times due to very low fees that they get for each case. That could have been avoided if regulated, but it was not, and so remains.

Timings of reports are a major issue. Common complaints that I hear are experts taking no more than five minutes to fill in a computer form in an interview of quick-fire ,yes and no questions; it is little wonder that these reports are largely of such poor quality and such limited value.

The recent reforms brought in by Government following consultation will change the scenery. The problem is that nobody knows how, least of all the Government.

The computer program that many experts use rather compounds the problem. Based broadly on the Incapacity Benefit form of late (and later ESA), it runs on a series of questions with pull -down answers. With IB this was a weak system without free text being required to be added to personalize the report, with RTA3 forms it is even worse. Many of the reports are identical other than the name and address. It is common to see a series of claimed symptoms all described identically – i.e. all initially severe, all improved to moderate to severe. It would not have been difficult to include free text justification for each, but it was not done as this is a process about speed, not about accuracy.

The underlying problem is that when people are offered money a good proportion will exaggerate their need( in my experience around 80%) and a smaller but still significant proportion will outright lie (probably nearer 20%, but still very significant). Any system has to be set up to take account of that – so far this is lacking. There are a proportion of claimants and their advisers who will see a bar set at a certain level, above which there is some advantage to themselves, and will go all out to get over the bar. To some extent that already occurs and I am asked at least once a week to change a record of factual information in the records to favour claimant’s cases – I never do so, but I am happy to point out that they can dispute the contents should they wish, it is just that I can only reproduce what the records say which can be unfortunate if they show the mechanism of injury to be very different to the case being presented.

The issue of notes has been dictated by government but the weakness is readily explained. About a year ago I was doing a second examination on a case that appeared clear cut. The initial GP expert report was certainly adequate and had included the General Practitioner’s notes on the case which clearly identified the injuries as claimed. The report identified that EXPERT WITNESS JOURNAL

18

SUMMER 2017

Looking at smaller cases as they currently run, a common scenario is as follows: Claimant has a minor accident; they may never seek any medical advice but some six to twelve weeks later (sometimes longer) they will see an initial GP Expert for their claim, the cases then fall into two categories. The first is those who claim severe initial symptoms, time off work, care and other consequences, but report that they are now fully recovered – at present that claim will be paid even though the claimant may never have been injured and may never have been off work because nothing is checked ( by the time of the GP Expert report there is nothing medically to check that could defeat the claim in the cases that have recovered). The second group again usually claim severe initial symptoms with the expected consequences but claim to have continuing symptoms to some degree – either completely unchanged (very questionable), or partially improved. The initial examination, as I have noted above, is rarely adequate to tell anything and in any event tenderness and restricted range of movement are purely subjective and very easy to fake especially in these very short consultations where inspection and observation for inconsistency rarely seems to feature, although a vital part of the process.

Very rarely are these reports detailed enough to see if the claim as stated adds up in any way. A prognosis is given, although rarely with anything like enough

EXPERT WITNESS JOURNAL

evidence to do so, some treatment might be arranged and again there are then two groups left. The canny ones claim to get better within the prognosis, but only just: Their case is never examined in any detail again, so again a claim could have been paid to someone who was never injured at all. These cases, of course, include ‘occupants’ of the vehicle that may never have been at the accident at all but nobody has ever checked.

Those who still claim to have symptoms then are sent to the secondary examiners, such as myself. I do not see cases without the contemporaneous notes, preferably prior to examination but always before the report is finally concluded. It is at this stage that many of these cases fall apart. The problems usually begin with either no corroboration of symptoms in the notes, an examination a few days after the accident ( not the day of the accident as symptoms reasonably may not have developed)which shows little wrong with the claimant, long with an absence of sick notes.

That is then related to the GP Expert report which usually gives an entirely different picture, always much worse. The other problem not infrequently encountered is that conditions that genuinely were present as part of the injury were missed at that initial examination either because the examination was too brief, or the expert was not expert enough, or both.

19

SUMMER 2017

So we have a system in MedCo, that before the reforms certainly got through the cases, but encour aged fraud on an industrial scale. Will the recent Government changes help? We have to see but I very much suspect they will make the situation worse. If you make your starting point to save money, that very rarely turns out to be the outcome. Had they tried to regulate and improve audit and quality, then cost savings could have resulted. Unfortunately we have two major players in the market – the Insurance Companies and the Medical Reporting Agencies, who either appear to have little interest in reducing the claims or have a positive interest in there being as many claims as possible. The insurance industry could do far more, such as encouraging dashcams and other onboard recording devices but most offer no incentive to improve this aspect, which can massively reduce the cost of an investigation following an accident with no independent witnesses, which of course all raises premiums. My example is a driver who reversed into my car in 2015 in the center of Oxford (crowded, nowhere to escape once the reversing lights came on).

Even though I showed her the dashcam she still told her insurance company that I drove into her rear (ok it’s a criminal offence but has anyone ever been prosecuted?). Without the camera that would have been a lengthy process to sort out, as well as expensive and a 50:50 split – sending the film sorted it out in seconds.

tion system on MedCo greatly favours agencies over Direct Medical Examiners and whilst numerically that is inevitable it is on far too great a scale.

Of course another Government aim is a reduction in car insurance premiums. The latest Insurance industry excuse for higher premiums is more complex vehicles costing more to repair – but a second’s inspection of that argument reveals the holes – if they are too costly to repair they are written off and the owner is paid a percentage of their market value (yes I’ve been there too and was offered 75% of the replacement value in spite of everything being in order). In any event are we expected to think that Insurance Companies have not raised their premiums to cover such costs as they have increased in any event? So will all of this reduce premiums? I suspect pigs will fly long before that happens.

To solve the problem we need a system that is more robust, better (not more) regulated and which is more comprehensive. We need a system where agencies do not take the majority of the fee when the expert does most of the work, and where a comprehensive audit of the quality by sampling is undertaken.

And if you really want to reduce the injuries because the claims have reduced – well let’s try airbags that go off on a rear end impact for both front and rear car occupants: that would make more difference than anything.

RSW. - April 2017

The Agencies of course make money, and a lot of it, from every case, so realistically expecting them to want to support moves that will reduce their income is unrealistic.

Both the insurance and MRO parts of this business could be regulated -Agencies still purchase cases in effect (it is illegal so they call it something else) thereby filling their caseload and denying others. The alloca-

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. Russell V. Pearson

Dr. Matthew Starr

Miss Vickie Lee

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

EXPERT WITNESS JOURNAL

20

SUMMER 2017

Expert Witnesses: Liability to Parties Other Than the Client

by Dr Anton van Dellen - Barrister, Goldsmith Chambers formation, and allowing the expert to discharge his duty to the Court or Tribunal.

Introduction It is now over five years since the seminal case of Jones v Kaney [2011] UKSC 13 which introduced liability for expert witnesses. Unlike lay witnesses, who have maintained their immunity, expert witnesses are now liable in negligence and may be sued by disgruntled instructing parties. This followed the loss of immunity of barristers a decade prior in Hall v Simons [2002] 1 AC 615.

However, focussing on the duty of care of an expert witness encounters several problems, as discussed by David Capper.2 Jones v Kaney addressed the issue of an expert instructed by a party who breached their duty of care to that party.

But, it is not difficult to envisage scenarios where this basic paradigm would not apply. The most obvious example is a single joint expert who owes a duty of care to each party. Another example, noted by Baroness Hale in Jones v Kaney, is an independent psychiatrist instructed on behalf of the patient in tribunal proceedings under the Mental Health Act 1983, or the child psychologist or child psychiatrist instructed by the parents of a child with special needs in proceedings before a Special Educational Needs Tribunal. There is an obvious discrepancy between the party instructing the expert and the party to whom the duty of care of the expert applies. Likewise, it is also not clear whether social workers who carry out expert risk assessments have a duty of care to the local authority that instructs them or to the parties in the proceedings.

At the time of Jones v Kaney, scepticism was expressed that removal of expert witness immunity would trigger a flood of vexatious and unmeritorious claims. This was a view expressed by Lord Phillips at [59], drawing a direct parallel with the experience of barristers following the loss of barrister immunity.

However, as soon as seven months after Jones v Kaney, concern was already being expressed that the predicted trickle of claims was an under-estimation of the likely scale of litigation against expert witnesses.1 The approach of the Court of Appeal since Jones v Kaney Ridgeland Properties Ltd v Bristol City Council [2011] EWCA Civ 649 was a decision which followed shortly after Jones v Kaney. In circumstances where an expert witness forgot to mention a key piece of evidence, Sullivan LJ held at [47] that such an omission could trigger a claim by the party instructing the expert against that expert, provided that the instructing party had acted with due diligence by assisting the expert in every way he can, such as by providing the expert with all relevant facts and inEXPERT WITNESS JOURNAL

Capper raises a far more fundamental problem relating to the expert’s duty of care, which is that the expert owes an overriding duty to the court.

Ultimately, this may potentially mean that the expert will relegate his duty of care to his client. However, by acting in this manner, the expert is not falling below a reasonable standard of care for an expert witness and a claim for professional negligence would probably be doomed to fail.

21

SUMMER 2017

In Phillips v Symes, it was suggested at [22] that the threshold for wasted costs against an expert (on the basis that they had breached their duty to the court) was if “they act in flagrant disregard of that duty”. At [23], it was suggested that the threshold is a “gross dereliction of their duties”.

What core immunity remains despite removal of liability for expert witnesses?

Despite Jones v Kaney, there remains a core of immunity which appears to be retained by expert witnesses, as per Spencer J in A v Chief Constable of Hampshire [2012] EWHC 1517 (QB). The dispute in that case related to various disclosures made during the course of proceedings. The core of immunity appears to cover disclosure in the course of providing expert evidence. At [26], Spencer J held (underlining in the original; bold added):

The authority to order wasted costs against an expert in Phillips v Symes was also held to derive from the judgment of Lawrence Collins QC (as he then was) sitting as a Deputy High Court Judge in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 2 Costs L.R. 169. However, the threshold in that case for ordering costs against a non-party was held to be if it was “just and reasonable to do so”, relying on the earlier case of Symphony Group Plc v Hodgson [1994] Q.B. 179 (CA).

… The Supreme Court in Jones v Kaney cannot be taken to have intended to abolish the core immunity under examination in the present case, which has been enjoyed by witnesses, parties and their advocates for centuries. … Jones v Kaney is concerned with the liability of a “friendly” expert to the party who instructed him. Arthur JS Hall v Simons was concerned with the liability of an advocate to his own client. …

Symphony Group outlined a number of points of principle in relation to the making of costs orders against non-parties, the first two of which are of particular relevance for expert witness and are expressed as being an obvious application of the basic principles of natural justice:

Consequently, it would appear that disclosure such as that in A v Chief Constable of Hampshire would be protected by core immunity and would not be caught

by Jones v Kaney liability. Consequently, not all actions by an expert witness appear capable of triggering liability – disclosure would not automatically be a breach of the reasonable standard of an expert witness. By contrast, an opinion expressed in relation to that disclosure would potentially be a breach of the reasonable standard of care.

(1) An order for the payment of costs by a non-party will always be exceptional, as per Lord Goff in Aiden Shipping Co. Ltd v Interbulk Ltd [1986] A.C. 965 , 980F. (2) The party seeking their costs should warn the non-party at the earliest opportunity of the possibility that he may seek to apply for costs against him. At the very least this will give the non-party an opportunity to apply to be joined as a party to the action.

Liability for costs outside the regime of Jones v Kaney Peter Smith J in Phillips v Symes [2004] EWHC 2330 (Ch), which obviously predates Jones v Kaney, ordered wasted costs against an expert in a decision that anticipated the approach of the Supreme Court in Jones v Kaney. Phillips v Symes was cited in Jones v Kaney by Lord Phillips PSC at [44], who held that the utility of the expert’s exposure to wasted costs was that it would act as a deterrent to an expert who erred in the process of balancing their duty to their client to their duty to the court:

The approach of making a wasted costs order against an expert was followed in X Local Authority v Trimega Laboratories Ltd [2014] 2 FLR 232, when the basis for making such an order was held to derive from the Senior Courts Act 1981 s.51, the Civil Procedure Rules r.46.2 and the Family Procedure Rules 2010 Pt 28. The court in Trimega held that the test need not be as high as a flagrant, reckless disregard of the duties of an expert but that even a simple human error can suffice to warrant the ordering of wasted costs against an expert. Costs of £17,167 were ordered to be paid in that case.

44. … In Phillips v Symes (No 2) [2005] 1 WLR 2043 Peter Smith J held that expert witnesses were not immune from being held liable to wasted costs orders. .... I do not consider that the susceptibility of expert witnesses to disciplinary proceedings or to wasted cost orders weakens the case for immunity from civil suit, in so far as this case exists. The principal argument advanced for immunity from civil suit is that the risk of being sued will deter the expert witness from giving full and frank evidence in accordance with his duty to the court when this conflicts with the interests of his client. In so far as a witness may be tempted to trim his sails to suit his client, I would expect the risk of disciplinary proceedings or of a wasted costs order to be a deterrent. …

EXPERT WITNESS JOURNAL

Finally, in Re Capita Translation and Interpreting Ltd [2015] EWFC 5, Sir James Munby PFD held at [21] and [31] that, under section 51 of the Senior Courts Act 1981, a non-party could be ordered to pay costs of that party failed to attend and the hearing was consequently not effective. Capita obviously involves the failure of attendance of an interpreter, but the reasoning is equally as applicable to an expert witness. The liability is not necessarily to the party instructing the expert witness, but would include the other parties in proceedings. Of note is that Sir James Munby expressly endorsed the approach of Peter Smith J in Phillips v Symes.

22

SUMMER 2017

However, overall, given the seniority of the court, the approach of Symphony Group is probably to be preferred.

Conclusion Several issues of uncertainty in relation to expert witness liability remain unresolved despite the passage of time since Jones v Kaney. The first relates to circumstances where the expert owes a duty to a number of parties, rather than just one. The second relates to a core form of immunity which appears to remain untouched despite Jones v Kaney. The third is the pre-existing regime allowing wasted costs against an expert witness, the threshold of which remains wholly unclear. Given this uncertainty, the approach of the Court of Appeal in Symphony Group is to be preferred, namely that an order for the payment of costs by a non-party will always be exceptional.

Prof Charles M Court-Brown Professor of Orthopaedic Trauma - MD, FRCS Ed (Orth) Professor of Orthopaedic Trauma at the University of Edinburgh. He has a particular interest in the management of orthopaedic injuries, including both upper and lower limb injures and fractures of the pelvis, spine and neck (including whiplash injuries). He has extensive experience in the surgical management of all fractures and in the treatment of complications related to fractures.

He has considerable experience in emergency and trauma surgery and has extensive knowledge of the injuries caused by road traffic accidents, falls, trips, assaults and other hazards.

Dr Anton van Dellen Barrister, Goldsmith Chambers BPP University Schools of Law and Health Conflict of interest: Dr Van Dellen delivers expert witness training on behalf of BPP University and the Royal Society of Medicine. The views expressed in this article are his alone and not those of BPP University or the Royal Society of Medicine.

He has written 9 books and over 160 papers on trauma and its treatment. He has extensive medico-legal experience and averages about 300 new instructions annually.

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

References 1 Van Dellen, “The Aftershock” NLJ, 2011, 161(7488), 1523-1524.

Need an expert fast Call our free searchline on 0161 834 0017

2 David Capper. “Professional liability in the trial process”, P.N. 2013, 29(1), 7-24.

or visit www.expertwitness.co.uk

Mr Otto von Arx Consultant Orthopaedic Spinal Surgeon Medico-Legal / Medical Negligence Expert MBChB, MRCS, FRCS (Tr & Orth)

Mr Jeffrey S Hillman

Mr Otto von Arx is a Consultant Orthopaedic & Spinal Surgeon based in Bath since 2007. He has worked as a Consultant Orthopaedic and Spinal Surgeon since 2007.

Consultant Ophthalmic Surgeon MB ChB DO FRCS (Edin) FRCOphth I am a Consultant Ophthalmic Surgeon and was an NHS Consultant at St James's University Hospital and Hon Senior Lecturer in the University of Leeds for 25 years and continue in private practice. My interests are general ophthalmic medicine and surgery with special interests in cataract surgery, intraocular lenses and glaucoma as well as trauma and medical negligence.

Mr Otto von Arx is a specialist in Orthopaedic Trauma Surgery and, experienced in most sub-specialties within Orthopaedic Surgery, primarily Spinal Surgery. He has undertaken research and audit projects during his career, which have culminated in local, international podium presentations and publications in peer reviewed journals.

I have been preparing reports supported by Literature references for over 20 years. Between 1992 and 2015 I have advised in 1330 cases, 70% for Claimants' solicitors, 27% for Defence solicitors and 3% on joint instruction

His areas of expertise include Spinal Surgery with expertise of spinal surgical practice, including pre-operative, peri-operative and post-operative management of spinal trauma and elective spinal surgery.

Mr Otto von Arx has over 10 years experience acting as medical legal expert, providing advice and expert reports to instructing solicitors. His medical legal practice is split 70: 30 between claimant and defendant instruction.

I have a rapid response facility for cases with tight time constraints.

Contact: 135 Wigton Lane, Leeds, West Yorkshire LS17 8SH Tel: 0113 268 9601 Fax: 0113 237 0884 Email: Jeffeye@btinternet.com Website: www.mrhillman.com

EXPERT WITNESS JOURNAL

Tel: 01761 422 258 Fax: 01761 422 233 Contact: P.A. Ellie Barnes Email: ovonarx@me.com Circle Bath Hospital Ltd, Foxcote Avenue Bath Business Park, Peasdown ST John, Bath BA2 8SQ

23

SUMMER 2017

Are the Courts Getting into the Hot Tub?

by Alison Somek, CEO, Somek & Associates Nicholas Deal, Expert Witness Trainer, Bond Solon - June 2017 There are some themes to this style of hearing evidence: (i) it is a judge-led (inquisitorial style) approach; (ii) it is a discussion, focussing on one issue at a time; (iii) any adversarial element is limited, if not removed altogether.

From 1st April 2013, the civil courts in England and Wales have been able to hear expert evidence concurrently. In 2016, the Civil Justice Council carried out a study to see what was happening in practice.

This article looks at that study, at recent experience and makes some suggestions for the future.

PD35.11 opens the door to concurrent expert evidence and sets out a process which the courts can follow. Essentially, it envisages that the experts are sworn in together; each is invited by the judge to give their views on the first issue; each may be asked questions by the judge; the judge may invite the experts to comment on, and ask questions about, each others’ views.

The decision to hear expert evidence concurrently is at the court’s discretion, as is the ability to modify the procedure outlined above.

The CJC report (1) was a thorough review, relying on questionnaires and interviews of judges, experts and lawyers. It found that the use of concurrent expert evidence (“CEE”) is more widespread than had perhaps been thought, had been used even prior to the appearance of PD35.11 and not just in the civil courts. (The Family Court has used it, as have Arbitrations for some time; the CJC focussed on the civil courts).

The process is described as a discussion.

Following that process, the parties’ representatives “may” ask questions, but this is to be a limited questioning. It is to test the correctness of an expert’s view, or to clarify it, but it should not cover ground which has already been covered. Full cross-examination or re-examination is “neither necessary nor appropriate.”

EXPERT WITNESS JOURNAL

The Report makes a number of recommendations; this article looks at the variations of CEE found and at issues of preparation of, and communication with, expert witnesses.

24

SUMMER 2017

with the traditional trial. Trials, as we all know, are rare and prior to May 2017 none of Somek and associates’ 200 experts had been “hot tubbed”. As a consequence training in CEE has been limited and was not felt to be a priority, despite it being a possibility since 2013 as stated in the rules (PD35.11).

Variations (i) Sequential back-to-back evidence The experts are called at the same time and are both sworn in. C’s expert is examined, cross-examined and re-examined on issue 1; then D’s expert goes through the same process. The same could be applied to a cluster of issues, rather than one at a time. The court can ask questions at any stage. Essentially, this is the usual adversarial process, counsel-led not judge-led.

The difference is that it is issue-driven and the parties will have agreed the list of issues to work through and the running order.

So imagine the slight feeling of panic when, upon speaking to her solicitor just a few hours earlier, JB was told she and her counterpart were to be “hot tubbed”!

What actually happened?

JB was warned for court and initially held 5 days Monday to Friday; she was finally informed she would not be required until Wednesday. On Monday afternoon, the call came through asking her to be available at Middlesborough CC at 10am on Tuesday, a day earlier. Thankfully, she was able to sort care for her children and drive to Middlesborough that evening for court the following day, still in the belief that this would be a “normal” trial!

(ii) Hot tubbing, or judge-led joint examination of experts This practice follows PD35.11 as set out above. The theme of the process is the judge-led discussion of the issues (iii) Hybrids As seen above, PD35.11 gives the judge a wide discretion to modify the process. The CJC notes that it is a discretion “oft exercised”.

The following morning she was informed that the expert witnesses would be hot tubbed. She knew a little about CEE from a brief discussion on the courtroom skills training and she had read PD35.11.

The hybrids involve more, or less, involvement by counsel; more, or less, leading from the judge; experts commenting on each other’s evidence; experts being invited to question each other on their evidence.

But what is described in PD35.11 did not happen.

What proceeded was a “variation” on that which is described in PD35.11, and we now know that such “variations” are indeed used according to the Judge’s preference.

Now, this must be good news as it shows a willingness in the judiciary to adapt the way in which expert evidence is heard, according the needs of a particular case, which is likely to focus more precisely on the issues and so to deal with the evidence more efficiently.

JB and her counterpart (CP) were both asked to take the oath.

JB was directed to the witness stand and CP to the jury box.

(iv) The teach-in The court appoints a neutral expert to give high level assistance to the judge before the trial; they do not deal with the specifics of the case, but essentially give the judge a tutorial to aid their understanding of the issues.

What ensued was not the procedure described in PD 11 whereby the Judge, having distilled the issues in dispute from a previously prepared agreed joint statement, asks questions and invites the experts to question one another. What took place took the form of “sequential, back-to-back evidence”, whereby JB and her counterpart underwent examination in chief and cross examination dealing with three issues in dispute:

The Report’s findings are favourable to the use of these different approaches, as appropriate to the needs or issues in each case. One of the issues to have emerged is that of communication with the expert witness, as we shall see from the experience described below.

Issue 1: Task based care v reimbursement for all time family spent at house

The reality - one expert witness’ experience Care expert JB, an occupational therapist, is an associate of Somek and Associates. She is a reasonably experienced expert and has undergone comprehensive training in the role of the expert witness, CPR, report writing skills and courtroom skills.

Issue 2: Future needs - when paid care would start from Issue 3: Claimant’s care needs in any event Each of the above was taken in turn with the Claimant’s expert undergoing examination and then cross examination on issue 1 followed by the defendant’s expert, before proceeding to issue 2. The Judge interjected very periodically.

The medico-legal intelligence has indicated that Concurrent Expert Evidence (CEE) has not really been implemented in clinical negligence or personal injury cases with a few exceptions, Judges preferring to stick EXPERT WITNESS JOURNAL

25

SUMMER 2017

a sensible and reasonable option. Above all JB wished she had been advised of the procedure in advance, in order to prepare and clarify any points of order.

In other words this was a fairly usual and adversarial trial process, the only differences being the following: 1) Both experts were under oath and therefore were unable to communicate with their own counsel during their counterpart’s evidence – to the detriment of counsel I am sure.

It seems this was not really much of a departure from the normal trial, and rather a long way from Lord Justice Jackson’s proposal that Judges should ask the questions, taking a more inquisitorial approach designed draw out the best evidence with greater clarity.

2) The issues in dispute were agreed and were the only focus of examination, as opposed to respective Counsel determining their own questions.

Tips So, what are the messages for expert witnesses: 1) CEE IS happening

3) Each issue in dispute was addressed in turn by the court and both experts, as opposed to the Claimant’s expert giving all evidence first, followed by the Defendant’s evidence.

2) CEE is being introduced in a variety of forms – the above being just one

4) Both experts were required to stand for the duration, including while the counterpart was being questioned.

3) Be prepared for the unexpected!

4) When warned for trial, ask to be informed in plenty of time if there is a possibility or likelihood of being hot tubbed

This procedure was not explained to the expert witnesses. They were not informed of what they could and could not do e.g. were they allowed to take into the “witness box” a pen and blank piece of paper to take notes during the counterpart’s evidence? Were they allowed to participate (as described in PD35.11) by putting a hand up and asking a question of the counterpart or putting an alternative view?

5) Read the CJC empirical study on CEE – or at least Appendices A and C; but note that at the present time these are only recommendations and other variations may be used 6) Watch the EW press for updates on CPR in respect of CEE, which will take on board at least some of the recommendations of the study.

In the nervous panic neither expert thought to ask the court for advice regarding such matters.

7) Do not simply accept a new procedure that you are not familiar with, without asking questions to clarify the do’s and don’ts for you, the expert witness

We would strongly request that the legal parties advise their experts in advance when CEE will be implemented and give them as much information as possible. Giving oral evidence is always a nerve wracking affair – attending courtroom skills training undoubtedly helps to prepare the expert and calm the nerves, at least in terms of knowing what is going to happen. This all flies out of the window if the process is significantly altered! All parties, court, lawyers and experts, want the best performance of the experts to achieve the best outcome for the case and throwing them rudely into the hot tub as opposed to easing them down the steps while holding a rail, will not help!

8) Attend training to familiarise yourself further with the variations of CEE, thus increasing your self confidence 9) Have a good breakfast and make sure water is available – if you need to sit for health reasons, request to do so.

What is clear is that this is an evolving process. In our view, that is undoubtedly a good thing, if the aim is enable the parties, instructing solicitors, counsel, the judge and the experts to focus more precisely on the issues. A mini-inquisitorial process, within the overall adversarial one, is likely to take time to evolve fully and to be understood.

JB’s assessment of the procedure – well, it made some sense to go through each issue in dispute one by one hearing all evidence, before moving on to the next. It was good to have the three issues in dispute confirmed and to know that this would be the limit of the examination.

The key is good communication. What happened to JB is not helpful.

The CJC recognises that the judge can decide to use some form of CEE at any stage. They are clear that any order to make use of it should be made as early as possible to allow all involved to prepare properly.

They are also clear that any such order should be communicated to the experts by their instructing solicitors “forthwith” – not simply on arrival at the hearing. They recommend that the rules be amended accordingly.

It was frustrating not being able to comment on some aspects of her counterpart’s evidence and to be able to assist counsel on technical matters of fact. Standing for such a long period caused her to wish she had eaten a more hearty breakfast! Fatigue is not helpful to performance and allowing expert witnesses to sit while listening and giving evidence would seem to be EXPERT WITNESS JOURNAL

26

SUMMER 2017

Our aim in writing this article is to encourage the use and development of CEE by the courts and to encourage experts and their lawyers to maintain clear and quick communication as they do so. Good Luck!

Dr Gordon Williams Consultant Cardiologist MB BCh FRCP FACC

Postscript After this article had been submitted, an article appeared in litigationfutures (27June 2017), with further action from the Civil Procedure Rules Committee (“CPRC�).

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

Following the CJC study, a CPRC sub-committee has been considering whether to amend PD35.11 and whether to include all the CEE variations. The CPRC has decided to opt for the classic CEE (the pure hot tub), as set out in the current version of PD35.11.

0113 218 5943 0113 218 5987 07702 550 758

Email: sandra.ellerbeck@spirehealthcare.com Member British Cardiac Society

The CPRC also endorsed greater use of hot tubbing, saying that it would be beneficial for it to “become, increasingly, a normal feature of expert evidence in all courts�.

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.

The expectation is, therefore, that the variations cease and that, if the evidence is deemed suitable for CEE, it will be in the hot tub.

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.

Reference 1, Civil Justice Council, Concurrent Expert Evidence and "Hot-Tubbing" in English Litigation since the "Jackson Reforms", A Legal and Empirical Study, 25th July 2016.

Alison Somek, CEO, Somek & Associates Nicholas Deal, Expert Witness Trainer, Bond Solon June 2017

Mr Nikhil Shah

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

1 &118 /#*.2 *2 &70&1*&.$&% ".% $/.3*.4&2 3/ 01"$3*$& *. ",, "20&$32 /' "231/&.3&1/,/(8 *.$,4%*.( '4.$3*/.", #/6&, %*2&"2& *.$/10/1"3*.( 3)& 11*3"#,& /6&, 8.%1/-& .',"--"3/18 /6&, *2&"2& %820)"(*" %820&02*" 1&',47 %*2&"2& ",3&1&% #/6&, )"#*3 *.5&23*("3*/. /' *1/. %&'*$*&.$8 "."&-*" $/&,*"$ %*2&"2& 4.&70,"*.&% "#%/-*.", 0"*. ".% "#./1-", 2

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.

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.

1 /#*.2 )"2 ",, .&$&22"18 "$$1&%*3"3*/. ".% &73&.2*5& &70&1*&.$& *. ("231/2$/08 &.3&1/2$/08 ',&7*#,& 2*(-/*%/2$/08 ".% $/,/./2$/08 *.$,4%*.( 3)&1"0&43*$2

Instructions from claimant/defendant solicitors or single joint expert approximately (ratio 45:45:10). I provide the regional tertiary service in pelvic-acetabular fractures.

& *2 &70&1*&.$&% *. 61*3*.( &%*$/ &(", 1&0/132 *.$,4%*.( '/1 ",,&(&% $,*.*$", .&(,*(&.$& & )/,%2 36*$& 6&&+,8 $,*.*$2 2/ $".

2&& 0"3*&.32 ".% 01&0"1& 1&0/132 1"0*%,8

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

1 &118 /#*.2 ".& /22

(1/#00 (//(,&-"*, $/ %1(&1181/#*.2 $/ 4+ 4''*&,% /20*3", "7#8 /"% !/1+ !

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

27

SUMMER 2017

Litigation Insights - Perspectives from a Midwifery Expert Witness

by Angela Cook, angela.cook@expertwitnessmidwife.co.uk Furthermore, a range of human factors were identified following an indepth review of the maternity records. Although the majority of these ‘non-technical skills’ involved exemplary multidisciplinary team working, unfortunately there were occasions when poor midwifery leadership and ineffective communication/teamwork were exhibited and this impacted negatively upon midwifery care provision for the childbearing woman whose condition was deteriorating. Indeed, a very clear message that emerges from the latest national report reviewing maternity mortality in the UK and Ireland, is the endorsement of effective multi-disciplinary care for childbearing women across many medical specialities (MBRRACEUK 2016).

The birth of a child should be a wonderful, lifechanging time for a mother and her whole family. It is a time of new beginnings, of fresh hopes and new dreams, of change and opportunity. It is a time when the experiences we have can shape our lives and those of our babies and families forever. This vision is addressed to the women of England within the National Maternity Review as part of the NHS Five Year Forward View (NHS England 2016). Unfortunately, this view is not reflective of the midwifery care provision for some women birthing in the UK. Indeed, the maternity services, like the rest of the NHS, are facing many challenges, including severe financial constraints, increasing demands and expectations and continuing staff shortages. This gathering storm is threatening the safety, quality and sustainability of maternity services in England (RCM 2017).

Furthermore, the rising costs of clinical negligence are a significant concern to the NHS. By 2019/20 costs are expected to rise to £2.691 billion. This includes claims for seriously injured patients, such as those who suffer brain damage at birth (NHS Resolution 2016).

For the purpose of this article, 2 of the above recurrent themes will be discussed, namely related to CTG interpretation and antepartum haemorrhage.

Indeed, that which continues to feature most prominently is cerebral palsy and alleged misinterpretation of intrapartum cardio-tocograph (CTG) traces.

Whilst fetal heart rate monitoring during labour is a routine procedure in numerous maternity units, it has not yet been proven to reduce perinatal mortality or the incidence of cerebral palsy (Alfirevic et al 2013). Midwives are, of course, at the frontline of CTG interpretation and intermittent auscultation (IA) and it has been suggested that this aspect of their role is the leading cause of strain and pressure (Sholapurkar 2016). Currently, intrapartum fetal monitoring is going through another period of intense scrutiny in the UK.

As part of personal litigation insights obtained during Midwifery Expert Witness practice, a range of key topic areas emerged over the compilation of over 100 reports for both Defendant (NHS) and Claimant solicitors. Whilst specific individual details cannot be revealed without consent (NMC 2015), general thematic analysis revealed a range of issues impacting upon the mortality and morbidity of childbearing women and their babies. This included, though was not exhaustive, of the strongest theme of CTG misinterpretation and of unrecognised antepartum haemorrhage (APH) particularly relating to placental abruption within the context of midwifery telephone triage. In addition, the development of pressure ulcers featured (within the context of a body mass index BMI greater than 30 and the use of epidural in labour), undiagnosed third degree perineal tears, retained placental tissue resulting in secondary postpartum haemorrhage, a failure to recognise the significance of slow insidious vaginal bleeding within 24 hours of birth (primary postpartum haemorrhage PPH) and that which predisposed to maternal collapse and a delay in the recognition of life threatening sepsis.

EXPERT WITNESS JOURNAL

As such, following careful consideration of the evidence, guidance has recently been revised relating to fetal monitoring during labour (NICE 2017). Midwives are reminded that decisions should not be based upon the interpretation of the CTG in isolation of the woman’s overall clinical context. The updated document advises upon categorisation of traces as normal, suspicious or pathological and, accordingly, a management plan outlined.

CTG Misinterpretation Although recurrent themes are identified in the literature relating to substandard fetal monitoring such as inappropriate action, technical aspects and record keeping (Talaulikar et al 2014) it is agreed that 28

SUMMER 2017

inability to accurately interpret the CTG features strongly in litigation. Indeed, from personal insights, one aspect of substandard interpretation of CTG traces has occurred primarily as a result of incorrect classification of decelerations. This is particularly in relation to those that have been regarded as ‘early’ (that is benign and occurring with/mimics a contraction) as opposed to more accurately, those that occur following a contraction that are ‘late’ (that is occurring at or after the peak of a contraction. This is significant because late decelerations are a serious sign and reflect that there is compromise to the fetus in relation to oxygenation. An associated rise in fetal baseline rate, to greater than 160bpm, is also significant of the fetus trying to compensate. This can be overlooked when clearly this is a deviation from norm. Ultimately, the revised guidance relating to decelerations are to record:

The image above is reproduced from: Royal College of Obstetricians and Gynaecologists. Basic Practical Skills eLearning. StratOG Tutorial. London: RCOG; 2017, with the permission of the Royal College of Obstetricians and Gynaecologists.

Clearly current NICE guidance (2017) will require midwives to provide greater clarity relating to decelerations and will provide a more detailed benchmark for escalation to an appropriately qualified health professional (NMC 2016).

• Their timing in relation to the peaks of the contractions • The duration of the individual deceleration • Whether or not the fetal heart rate returns to baseline

One other issue relating to misinterpretation is confusing the maternal and fetal heart rates. Best practice is to auscultate the fetal heart with either a Pinard stethoscope or hand held Doppler prior to commencing electronic fetal monitoring. This is to avoid picking up maternal pulsations instead of the fetal heart. In addition, the maternal pulse should be identified and recorded separately. A sudden significant shift in the baseline or low baseline fetal heart rate (less than 110bpm) suggests recording the maternal pulse rather than the fetal heart rate. A better alternative would be the application of a fetal scalp electrode (Talaulikar et al 2014) following consent (NMC 2015). Personal insights of errors include the fetal heart rate starting to ‘accelerate’ during the second stage of labour. However, a warning is issued that when such accelerations occur with contractions they are likely to be maternal heart rate recordings and need to be verified (Talaulikar et al 2014).

• How long they have been present for • Whether they occur with over 50% of contractions • The presence or absence of a biphasic (W) shape • The presence or absence of shouldering • The presence or absence of reduced variability within the deceleration (NICE 2017).

The terms ‘typical’ and ‘atypical’ decelerations are still not recommended in an attempt to avoid confusion.

Instead, decelerations are required to be classified as early, variable or late. Further detail may be required, too within intermittent auscultation for low risk women. Indeed, the possible introduction of handheld ‘trace display doppler monitors’ aims to display numerical readouts as well as a fetal heart rate display during intermittent auscultation (IA).

These may then be downloaded onto computers and archived in a woman’s electronic records (Sholapurkar 2017).

Obstetric Haemorrhage – Midwifery telephone triage and antepartum haemorrhage (APH) Another emerging theme identified within personal insights is that of selected childbearing women experiencing antepartum haemorrhage (APH), namely placental abruption, which went unrecognised during telephone triage with midwifery staff.

This was often associated with a poor outcome for the fetus. The actual context for this theme involved childbearing women being advised to remain at home following reporting abdominal discomfort/pain perceived to be from contractions as opposed to being advised to attend the consultant led maternity unit when reporting constant abdominal pain and/or

Ultimately, a really significant point is the need for midwives to understand the physiology of the fetal heart rate in normal labour, confirm normality within fetal monitoring and identify when deviations from norm occur, including timely escalation (NMC 2016).

The diagram, as below, illustrates the physiology of the fetal heart rate secondary to such changes in the fetal blood pressure (RCOG 2017).

EXPERT WITNESS JOURNAL

29

SUMMER 2017

aim of minimising re-occurrence and of reducing the rising costs aligned to clinical negligence.

associated vaginal loss. Witness statements acknowledge experiences of abdominal pain as ‘unbearable’ and of ‘pain that did not go’.

Angela Cook angela.cook@expertwitnessmidwife.co.uk Midwifery Expert Witness – UK & Northern Ireland

Antepartum haemorrhage is defined as bleeding from or in to the genital tract, occurring from 24 weeks of pregnancy and prior to the birth of the baby.

APH complicates 3-5% of pregnant women and is a leading cause of perinatal and maternal mortality worldwide (RCOG 2011). In addition, placental abruption has been described as a serious condition when there is premature separation of a normally situated placenta occurring after the 24th week of pregnancy. The aetiology of this type pf haemorrhage is not always clear though it may be associated with hypertension, a sudden reduction in uterine size (following ruptured membranes or following the birth of the first twin), abdominal trauma (including domestic violence) or cigarette smoking. Bleeding may be concealed or revealed or, in many situations, mixed haemorrhage. The condition of the woman will be dependent upon the degree of placental separation. Hence, mild separation will often involve slight vaginal bleeding and no abdominal tenderness.

However, when moderate or severe separation of the placenta occurs, women will experience considerable blood loss (although may be concealed), shock and abdominal pain. The fetus may or may not be alive depending upon the degree of placental abruption (Marshall and Raynor Eds 2014).

Midwife – County Durham and Darlington NHS Foundation Trust (CDDFT) Midwife Teacher – Teesside University, Middlesbrough.

References Alfirevic, Z., Devane, D. and Gyte, G, M. (2013) Continuous CTG as a form of electronic fetal monitoring for fetal assessment during labour. Cochrane Database Systematic review. https://www.ncbi.nlm.nih.gov/pubmed/23728657 Cheyne, H., Dowding, D. and Hundley, V. (2006) Making the diagnosis of labour; Midwives’ diagnostic judgement and management decisions. Journal of Advanced Nursing, 53.

Marshall, J. and Raynor, M. (2014) Myles textbook for midwives. Sixteenth edition. Churchill Livingstone. Elsevier: Edinburgh.

MBRRACE (2016) (Mothers and babies: Reducing risk through audits and confidential enquiries across the UK) Saving lives, Improving mothers care. Surveillance of maternal deaths in the UK 2012-14 and lessons learned to inform maternity care from the UK and Ireland confidential enquiries into maternal deaths and morbidity 2009-14.

NHS England (2016) National Maternity Review. Better births. Improving outcomes of maternity services in England. A five year forward view for maternity care.

Ultimately, although women with uncomplicated pregnancies are encouraged to remain at home in the latent stage of labour (NICE 2014), the need to be able to recognise deviations from norm, such as contractions, via telephone triage as opposed to the signs of placental abruption are of paramount importance.

Although there is a clear lack of evidence reviewing telephone triage within midwifery practice, evidence that aims to analyse the context of such decision making has been produced by Cheyne et al (2006). This qualitative study explored midwives’ perceptions of the way in which they diagnose labour. Findings highlighted that midwives’ decision making was based upon the use of information cues which could be separated into 2 categories; those arising from the woman (physical signs such as distress or coping) and those from the institution (organisational factors and justifying actions). Therefore their diagnostic judgement was based upon the perceived physical signs of labour as opposed to the fact that there were signs of placental abruption. Hence this judgement resulted in delayed admission to the consultant led maternity unit and delayed recognition and escalation to senior obstetric staff.

NHS Resolution (2017) Delivering fair resolution and learning from harm. Our strategy to 2022.

National Institute for Health and Care Excellence (2014 with updates 2017) Intrapartum care for healthy women and babies.

National Institute for Health and Care Excellence (2017) Fetal monitoring during labour.

Nursing and Midwifery Council (2015) The Code. Professional standards of practice and behaviour for nurses and midwives.

Royal College of Midwives (2017) The gathering storm: England’s midwifery workforce challenges.

Royal College of Obstetricians and Gynaecologists (2011) Antepartum haemorrhage. Green Top Guideline No.63.

Royal College of Obstetricians and Gynaecologists. Basic Practical Skills eLearning. StratOG Tutorial. London: RCOG; 2017, with the permission of the Royal College of Obstetricians and Gynaecologists.

Sholapurkar, S, L. (2016) Amendments in electronic fetal monitoring and intermittent auscultation. British Journal of Midwifery, 24 (9), p665-667.

Sholapurkar, S, L. (2017) Trace display Doppler monitors.

British Journal of Midwifery, 25 (5), p282-283.

In conclusion, there is an urgent need to raise awareness amongst midwives in relation to this, and other emerging themes within obstetric litigation, with the EXPERT WITNESS JOURNAL

Talaulikar, V, S., Arulkumaran, S. and Virginia, L. (2014) Intrapartum fetal surveillance – Case based learning. Obstetrics, Gynaecology & Reproductive Medicine, 24 (2).

30

SUMMER 2017

Can You Trust Your Doctor?

by David Asker-Browne - Chartered Occupational Hygienist I am minded to tell you a story about a respected respiratory physician who got himself – and me – into deep water.

The case involves a man who had worked as a saw sharpener for more than 20 years. For the last 7 years of employment he reported breathing problems. His job was to sharpen saws, the teeth of which had been coated with tungsten carbide to give them resistance to wear. The blob on the end of a masonry drill is tungsten carbide. Initially his GP diagnosed asthma and gave him an inhaler, but over the coming years the problem persisted and he was referred to the local hospital respiratory department Eventually the saw sharpener lodged a claim against his employer for causing his asthma.

exposure persists it will eventually develop into lung cancer via an intermediate stage.

My report to the Court suggested that the Medical Expert should review his evidence and consider a diagnosis of Hard Metal Disease. At this point, the Judge threw out my report, declaring that not being a physician I could not disagree with one, nor make a diagnosis. My report was not admitted into evidence. However, the Medical Expert must have seen a copy, since shortly afterwards he changed his diagnosis to Hard Metal Disease. You could say that I was miffed!

At this point, the specialist chest physician was appointed as the Claimant’s expert, since he headed up the respiratory department concerned. After a lot of toing and froing, he came up with a report that attributed the Claimant’s complaint to ‘cough variant asthma’.

To my mind, the Medical Expert was out of his depth.

He had no training or qualifications in Occupational Medicine, and was clearly unaware of a respiratory condition that has been a classic occupational health example since the end of World War II. On the other hand, I felt well within my competence since the subject was part of my occupational hygiene training, and I had advised a pan-European tungsten carbide coating company for more than 10 years.

The gist of my occupational hygiene report was that Hard Metal Disease had been associated with saw sharpening for more than 60 years, and that it was widely documented. I referred in particular to Occupational Lung Disorders (2nd Ed) by W. Raymond Parkes. In a nutshell, it starts with asthma. If the worker is removed from the tungsten carbide exposure at an early stage it will abate. However, if EXPERT WITNESS JOURNAL

So what can we learn from this? Were the Instructing Solicitors at fault for appointing a Medical Expert with no training or experience in work related disease? Was the Medical Expert himself at fault, for 31

SUMMER 2017

waiting in the wings? We are already seeing hand and neck problems in young people, from the use if their mobile phones. Will we see premature deafness from music exposures via earphones? We are already watching the world of nanotechnology, where there is much yet to understand and little epidemiology. Have we reached the point where lifestyle is more of a problem than workplace hazards? Alcohol, processed meats, obesity and poverty are all getting a share of the blame today. Almost 300,000 new cancer diagnoses were made in the UK in 2015, which is a rise of 22% from 2005, according to the Office for National Statistics. Is there a relationship here between the rise in cancer diagnoses and the growth in diesel powered vehicles? The evidence supporting diesel exhaust emissions as a cause of lung cancer is very weak.

However, diesel fume is a source of very fine particulate matter – less than 10 microns in diameter. The International Agency for Research on Cancer and the World Health Organisation designate airborne particulates as carcinogens. In 2013, a study involving 312,944 people in nine European countries revealed that there was no safe level of particulates and that for every increase of 10 µg/m3 in PM10, the lung cancer rate rose 22%. The smaller PM2.5 were particularly potent, with a 36% increase in lung cancer per 10 µg/m3 exposure as it can penetrate deeper into the lungs.

not admitting that this case was outside his competence? Or was the Judge at fault by being pig-headed?

We could say that the problem goes back to the employer, for not doing his risk assessment properly.

But there’s nothing unusual in this. Most cases of work related ill-health that come to my attention have inadequate risk assessments. This is no surprise, since employers who get the risk assessment right don’t finish up in court.

Of course, the employer will say he did his best, and if that’s not good enough he has an insurer to fall back on. Are insurers doing enough to ensure that employers fulfill their health and safety obligations?

Sadly the answer is “No”. Their view seems to be that of the betting shop – as long as the odds are covered, they’re OK. Admittedly, some of them do advise their clients on risk reduction, but is this self-interest at work? Do insurers check to see if risk assessments are adequate?

As with most occupationally induced ill-health, once you have got it, it’s too late. There is no cure for noise induced hearing loss, or for silicosis or respiratory sensitisation. Vibration induced white finger is for life.

The answer has to lie in prevention. At the moment the Health and Safety Executive (HSE) support the view that 14,000 people every year die with a work related lung condition. Work causes 8,000 new cases of cancer or COPD every year.

Occupational hygienists are employed throughout the English speaking world. The Occupational Hygiene Training Association is gaining traction and influencing the global training of occupational hygienists. This is under the auspices of the International Occupational Hygiene Association who work to ensure that best practice is followed by all practitioners, wherever they may be.

In bygone days, it wasn’t doctors that cured cholera or diphtheria. It was engineers, who brought about drains and improved sanitation and water supplies.

By the same token, it won’t be doctors that bring about a reduction in work related death and disease.

It will be employers who understand workplace contaminants and their toxicology, and how to get them under control. They can learn this from professional occupational hygienists but there is a woeful ignorance of our capabilities. It would be prudent for litigating solicitors to seek the opinion of an occupational hygienist early on in a claim for work related ill-health. This would enable the solicitor to receive help on the validity of such a claim and also with the selection of potential expert assistance. In the case of a medical input to a case, complete with a prognosis of future health, I would normally recommend membership of the Faculty of Occupational Medicine as a prerequisite. Occupational physicians and occupational hygienists have a close understanding of the synergy between our two professions.

But we are far from being out of trouble. According to the U.S. Geological Survey, more than a million tons of asbestos were mined in Russia in 2013. Much goes to India and China, where it is in high demand as a building material. So the scale of asbestos related disease in the UK is nowhere near what we can expect to see in Asia in the decades ahead. This is of considerable interest to tourists and those who elect to work abroad. The global effort to abate asbestos exposure is by no means successful, and in some countries it may be getting worse. Other concerns include malaria, where the World Health Organisation has been on an active prevention campaign for many years. Malaria remains an acute public health problem, particularly in sub-Saharan Africa. According to WHO, there were 212 million new cases of malaria and 429 000 deaths worldwide in 2015.

The spectrum of occupational ill-health is changing as we move towards a knowledge based society. The pneumoconioses from coal mining are diminishing as the industry shrinks and automation improves. As the heavy industries decline, the incidence of noise induced hearing loss has halved in the last 10 years, as have cases of vibration white finger. But what is EXPERT WITNESS JOURNAL

So whilst work induced ill health concerns us in the wealthy western nations, they look less significant when compared to international public health issues around asbestos, malaria and delivering affordable health care.

32

SUMMER 2017

The Increasing Role of Primary and Secondary Plastic Surgery in Trauma Management Ms Lena C Andersson, M.D., Dr. Med Consultant Reconstructive and Aesthetic Plastic Surgeon with extensive experience within paediatric and adult trauma Over the past ten years we have seen an increasing number of patients requiring plastic surgery due to having suffered trauma. The development of several trauma units throughout the country has triggered this development and around 20% of trauma cases are now receiving plastic surgical involvement in one way or another.

The development of the intensive care and trauma centres have been driving forces in the development of more advanced plastic surgery for trauma. From the 1970s onwards microsurgery has made it possible to start to move tissue around and to connect it micro-surgically in order to provide the blood supply. Before this we had only been able to move tissue locally in order to reconstruct defects that were deeper than just at skin level. Due to this positive development in plastic surgery with improved outcome, it has now become possible to shorten hospitalisation times and patients are discharged much quicker and mobilised much earlier due to the additional reconstruction we are able to offer our patients from a plastic surgical point of view.

Many cases are defined as combined cases where other disciplines such as orthopaedic surgery, general surgery, neurosurgery, ent-surgery and maxillofacial surgery are co-caring. A large portion patient’s are also admitted into an intensive care trauma unit in order to survive.

It is also possible to avoid chronic fractures, which never heal and sometimes lead to amputation, due to the fact that we are able to bring in healthy vascular tissue into an area, which has been heavily traumatised.

The type of injuries involved consists of sharp and blunt mechanical injuries, burns/frostbites and de-gloving injuries where skin, fat and muscle tissues have partly or wholly been injured or removed from certain areas of the body. Other types of injuries, which are commonly seen, are injuries, which relate to the lower limbs where fractures are simultaneously involved. The skin and soft tissues were damaged as the bones were fractured through the external trauma.

Many patients therefore suffer from scarring in multiple areas and also suffer from scarring due to the harvest of either skin grafts or the harvest of other soft tissues, e.g. muscle tissue or fascia/skin tissue that is used for the reconstruction of the limbs, torso or head and neck areas. The initial scarring will have resulted from the trauma but the secondary scarring which is inflicted due to the harvest of tissue in order to salvage/reconstruct the damaged area result in additional scarring which the patient will suffer as a consequence of the initial injuries.

EXPERT WITNESS JOURNAL

After having suffered scarring due to multiple trauma it is very important for patients to be assessed from a plastic surgical point of view as to whether this scarring can be improved or not. In general terms one should not attempt to improve scarring unless it can be improved to more than 50%. One has to take into 33

SUMMER 2017

consideration that the patient would have to undergo additional procedures and if there are only going to be a small improvement, the patient may find that the additional reconstructive surgery would be little benefit to them.

to reassure the patient but the real planning of further reconstructive surgery or the summary of the extent of the scarring is usually best assessed a year from the initial trauma.

We are now educating more and more plastic surgeons within the trauma field and the trauma sector is continuing to grow. Many patients that were not able to receive the multi-disciplinary care previously do today. With intensive care leading the way in the trauma units, many patients who suffer multidisciplinary injuries now survive, which was simply not possible in the past. â–

It should also important to consider that if you offer corrective surgery you should not expose the patient who has already suffered severe injuries to further possibly unnecessary risks. It can therefore sometimes be necessary to reconstruct and to improve scarring in stages rather than during one operation. This is clearly, from a medical point of view, in the patient’s best interest and it can sometimes be safest way forward. Any secondary reconstructive plastic surgery should optimise maximum improvement from a scarring point of view. The patients should also be able to continue with their normal life and have minimal disruption due to further reconstructive surgery.

Many trauma patients also suffer from post-traumatic stress disorder and the timing of the scar corrective surgery must be tuned into the recovery, which the patient is making from a psychological point of view.

An assessment by a psychiatrist is nearly always necessary as patients have suffered multiple injuries but it may not be necessary if a patient has just suffered a single scar to an area of the body. This would solely depend on the location of the injury and what impact the injury has had for this individual.

$! )!' '%)% %- '* .! %) .$! (! % ' $! ,. *" *) *) $! '%)% -+! % '%-!- %) !-.$!.% ) ! *)-.,/ .%0! ' -.% /,#!,3 *0!,%)# ,* , )#! ",*( ) !, .,! .(!).- .* +/,! !-.$!.% -/,#!,3 2+!,.%-! %) ' -.% /,#!,3 *) -/,#% ''3 %)0 -%0! .,! .(!). !-.$!.% /,#% ' /) !, '* ' ) !-.$!.% !(*0 ' *" %,.$( ,&- (*'!- ) -&%) ./(*/, &%) ) !, .,! .(!).- %) '/ %)# (*'! - ,!!)%)# /.! /,) ,! .,! .(!). !+ %, *" ( #! ,!-/'.%)# ",*( ) !, % !).- ) /,)- %) '/ %)# ' !, .%*)- - , *,,! .%*)- -&%) #, ".%)# "' + -/,#!,3 (% ,* -/,#!,3 $ ) -/,#!,3 ) )!,0! ,! *)-.,/ .%*) ,! .(!). *" 0!--!' !"*,(%.%!- $!( )#%*( '3(+$*! !( !(*0 ' *" !2 !--%0! -1! . #' ) - . ..**- ) 1 ,.-

Scarring is after all extremely individual and it reminds the patient of the initial trauma they suffered and every patient has to be carefully assessed on an individual basis before secondary plastic surgical interventions are decided upon. The timing of secondary plastic surgical interventions are also influenced by other disciplines; e.g. orthopaedic surgery has to be conducted before final scarring is improved.

The actual external scarring, which the patient has suffered can, as has been mentioned, be improved with corrective plastic surgery, but the ‘internal scarring’, which they have suffered at a psychological level will not necessarily be improved by corrective plastic surgery. The decision making here is delicate and it is of great importance to integrate the patient in this decision process in order to avoid disappointments and unhappy outcomes. The patients also have to be extremely tolerant with regards to the recovery. The healing time for a scar to settle is approximately one year and it may not therefore be possible to start the actual reconstructive process earlier than a year after the original injuries. Any ‘stage’ corrective surgery may further delay the total recovery time even though one may not need to wait the full year between the different stages of the corrections.

! *""!, (! % * '!# ' !2+!,. 1%.)!-- -!,0% !- 1$% $ %) '/ ! +,!+ , .%*) *" (! % ' ,!+*,.- ) !2 (%) .%*) "*, + .%!).)!! %)# ' -.% /,#% ' +! % '%-. *+%)%*)

$! )!' '%)% ,'!3 .,!!. *) *)

!'

2

! 111 )!' *( ( %' 4%)"* )!' *(

View our new look website here www.exper twitness.co.uk

A scar can be absolutely devastating initially but six to twelve months later it may have improved around 75% so assessments may initially be necessary in order EXPERT WITNESS JOURNAL

Top of google searches since 2008 34

SUMMER 2017

Regulation (EC) No 1223/2009 – a recast of the Cosmetic Products Directive 76/768/EEC – in regard to the safety of plant-derived cosmetic product ingredients

by Richard J. Schmidt BPharm PhD FFRPS MRPharmS CChem FRSC FLS www.inter--face.org Cosmetic products are regulated at European level to ensure consumer safety. Regardless of the manufacturing processes or the channels of distribution, cosmetic products placed on the EU market must be safe. The manufacturer is responsible for the safety of its products, and must ensure that they undergo an expert scientific safety assessment before they are sold.1

on price, making a profit by fabricating data and cutting corners on scientific rigour, for example:5 • Biometric Testing, Inc. • Industrial Bio-Test Laboratories So, in 1976, the FDA implemented its guidelines on good laboratory practice [GLP], a central aspect of which was the need to put in place standard operating procedures, robust process validation, quality control, and quality assurance.

To ensure their safety, cosmetic products placed on the market should be produced according to good manufacturing practice [GMP].2

The Good Laboratory Practice for Nonclinical Laboratory Studies (GLP) Regulations, 21 Code of Federal Regulations (CFR) Part 58, were first issued as a draft rule on November 19, 1976 (41 FR 51206), with the final rule issued on December 22, 1978 (43 FR 59986).

GMP is a global standard with origins that can be traced back to the thalidomide tragedy in the 1960s.

Thalidomide is a drug that was launched in 1957 as a treatment for nausea of early pregnancy. It was soon found to produce peripheral neuropathy and severe birth defects, problems that had not been picked up during preclinical testing in rats.3

FDA promulgated these regulations in response to public concerns that several important studies supporting the safety of FDA-regulated products were seriously flawed due to poor research practices and laboratory misconduct.

Having launched thalidomide in Europe, the drug company William S. Merrell petitioned the US Food and Drug Administration [FDA] in 1960 to be allowed to market the drug in the United States. Troubled by the lack of evidence that the drug was safe for human use, Dr Frances O. Kelsey at the FDA pressed the company for additional research. Her insistence on sufficient safety documentation kept thalidomide off the US market for over a year, time during which the link between thalidomide and birth defects was uncovered. In 1962, the drug was taken off the market.4

These regulations set forth the minimum basic requirements for study conduct, personnel, facilities, equipment, written protocols, operating procedures, study reports, and a system of quality assurance oversight for each study to help assure the safety of FDAregulated products.6 Accordingly, laboratories carrying out safety testing of drugs and pesticides had to be good laboratory practice [GLP]–accredited … and in turn, for similar reasons, medicinal product manufacturers had to be good manufacturing practice [GMP]–accredited.

The consequent requirement of the FDA for more robust safety testing of new drugs spawned the establishment of a number of new contract research organisations [CROs] who would carry out the necessary testing on behalf of companies developing new drugs, agrochemicals, etc. Certain CROs flourished by undercutting responsible laboratories EXPERT WITNESS JOURNAL

In the UK, mandatory compliance with GMP by medicinal product manufacturers followed the Clothier Report (1972) into the “Devonport incident”. FDA regulations mandating GMP in the manufacture of 35

SUMMER 2017

So, when applied to botanicals used as cosmetic product ingredients, CAS Registry Numbers at best identify just the plant source and certainly NOT the chemical composition.

medical devices came into effect in December 1978.

And now, legislation in the US and in Europe requires cosmetic products also to be manufactured to GMP standards to ensure their quality and their safety.

Similarly, INCI names do not imply a particular chemical composition nor indeed a particular standard or grade of purity. It follows that INCI name and CAS Registry Number designations tell us nothing about whether a botanical extract is safe for use as a cosmetic ingredient, nor does the INCI name or CAS Registry Number indicate that the use of the botanical extract as a cosmetic ingredient complies with the laws and regulations of the United States, Europe, or any other jurisdiction.

So, Regulation (EC) No 1223/2009 seeks to ensure that cosmetic products are safe to use. It requires cosmetic product manufacturers to comply with good manufacturing practice [GMP]. This means that, in turn, cosmetic product manufacturers have to source raw materials from GMP-compliant sources. This can be a problem with plant-derived cosmetic product ingredients.

Plant-derived cosmetic product ingredients are described by International Nomenclature of Cosmetic Ingredients [INCI] names. INCI names are internationally recognised uniform, systematic names used to identify cosmetic product ingredients, which are allocated by the Personal Care Products Council in the USA, currently at $200 per name. The Personal Care Products Council has developed nomenclature conventions for “botanicals”. Generally, these ingredients have not undergone chemical modification and include extracts, juices, waters, distillates, powders, oils, waxes, saps, tars, gums, unsaponifiables, and resins. The INCI names for botanicals are based on the latinised binomial identifying the genus and species of the plant. Historically, the primary reference used to establish the latinised binomial names for botanicals was Penso, G., Index Plantarum Medicinalium Totius Mundi Eorumque Synonymorum, O.E.M.F., Milano (1983) - ISBN 88-7076-027-8.

Indeed, the Personal Care Products Council acknowledges that the assignment of an INCI name does not imply that the ingredient is “approved,” “certified,” or “endorsed” by the Personal Care Products Council or by any other organisation or governmental body,11 as does Regulation (EC) No 1223/2009.12 Conversely, if an ingredient does not have an INCI name, it does not mean that the ingredient may not or should not be used in finished cosmetic and personal care products. The suitability for use of any ingredient as a component of a finished cosmetic product is solely the responsibility of the finished product manufacturer. And the suitability of an existing INCI name to describe a raw material is a business decision that ultimately must be made by the finished product manufacturer. 11 Regulation (EC) No 1223/2009 provides an extensive list of materials / ingredients that are not allowed to be used in cosmetic products,13 but passes responsibility for all other ingredients to the toxicologist who prepares the cosmetic product safety report that is required as part of the product information file.

This is why many INCI names of “botanicals” refer to what are now out-dated plant names.

Harmonised INCI names for botanicals are designated by the latinised binomial, followed by the common name (where historically used) in parentheses, followed by the plant part (if applicable) and the type of preparation, e.g. Prunus Persica (Peach) Leaf Extract.

When putting together a cosmetic product safety report (as is required by Regulation (EC) No 1223/2009), toxicologists CANNOT rely on an INCI name or a CAS Registry Number as an indicator of the composition of a plant-derived cosmetic product ingredient. However, on the basis of cosmetic product safety reports I have seen, they [sometimes] do. And it follows from this observation that the cosmetic product manufacturer in question is probably not complying with GMP in the sourcing of the botanical extract(s) in question.

Alongside the INCI names, these botanicals are also assigned CAS Registry Numbers.7 A CAS Registry Number is “a globally accepted identifier of a chemical substance”.8 Further, a CAS Registry Number is supposed to refer to a “unique organic and inorganic substance”9 and “designates only one substance”.10 However, in the case of botanical extracts, they refer to mixtures of unspecified composition. Typically, all the various botanical extracts prepared from a particular plant species (whether from seeds, leaves, roots, etc; and irrespective of the solvent and method used to prepare the extract) are assigned the same CAS Registry Number. Clearly, when applied to botanical extracts, CAS Registry Numbers do NOT refer to unique chemical substances.

EXPERT WITNESS JOURNAL

The toxicologist really should inspect not only the Technical Data Sheet for each ingredient but also a Certificate of Analysis for each batch of each ingredient. A Technical Data Sheet shows what the material should and should not contain. A Certificate of Analysis certifies that a particular batch of that product complies with the Technical Data Sheet (or with a recognised standard) as regards what it should and should not contain.

36

SUMMER 2017

For a plant-derived cosmetic product ingredient, the least I would expect to see in the Certificate of Analysis is the kind of information that is included in a pharmacopoeial monograph, including: • a declaration that the cosmetic product ingredient has been prepared from properly-authenticated plant material of suitable quality

References 1, https://ec.europa.eu/growth/sectors/cosmetics_en 2, See paragraph 16 in Regulation (EC) No 1223/2009 ; http://bit.ly/29tDttS 3 See https://doi.org/10.1093/toxsci/kfr088 4, http://bit.ly/2sz3fBW

• an indication that it contains the stated quantity of the relevant chemical material(s);

5, See Good Laboratory Practice Regulations, 4th Edition.

Weinberg, S. (Ed.) New York: Informa Healthcare, 2007

• an indication that it does not contain unwanted contaminants.

6, http://bit.ly/2rOXrq9 7, CAS Registry Number is a Registered Trademark of the American Chemical Society

The growers of plant material for the cosmetic product industry should be complying with good agricultural and collection practice [GACP].14

8, http://www.cas.org/about-cas/cas-fact-sheets 9, http://www.cas.org/about-cas/cas-fact-sheets/registryfact-sheet

The manufacturers of botanical extracts for use in cosmetic products should be complying with good manufacturing practice [GMP] to ensure the quality and safety of raw materials.

10, http://www.cas.org/content/chemical-substances/faqs 11,http://bit.ly/2sMXiAT 12, See Article 33 in Regulation (EC) No 1223/2009 ; http://bit.ly/29tDttS

Certificates of Analysis for botanical extracts should be produced by laboratories that comply with good laboratory practice [GLP].

13, See Annex II in Regulation (EC) No 1223/2009 ; http://bit.ly/29tDttS 14, http://bit.ly/2r1jlm9 http://bit.ly/2rwc29o http://bit.ly/2qSp4er

“Raw material related issues continue to be one of the most common findings during GMP inspections and most FDA warning letters to GMP facilities cite violations in raw material management. FDA's GMP inspectors pay special attention to the way raw materials are sourced, handled, controlled, used, and accounted for at a given facility. […] The real challenge in raw material management lies in the fact that it is mostly based on the performance of independent vendors out of direct control of the GMP facility.

Hence it is important for all GMP manufacturers to implement robust methods for raw material risk management.”15

15, See http://archive.is/03BFW All links to internet articles were accessible on 31 May 2017.

Dr Belinda Stuart-Moonlight is one of the UK’s foremost food safety and infectious disease experts, with over 15 years’ expert witness experience. She is tenaciously thorough, her growing reputation built on exacting attention to detail. Her numerous successful outcomes are grounded in scientific knowledge and ongoing experience of industry practice through her consultancy, training and auditing work. She frequently wins plaudits in her capacity as an expert witness in both criminal and civil cases:

Summary points: Regulation (EC) No 1223/2009 has been a culture shock for [some] cosmetic product manufacturers and for [some] toxicologists who prepare cosmetic product safety reports.

Why choose Dr Belinda Stuart-Moonlight as your Expert Witness? ❖ Has worked on landmark cases ❖ Cardiff University CUBS certificate in civil and criminal arenas ❖ Every action instigated as EHO successful in Court ❖ PhD in microbiological risk and its legal context ❖ Daily experience of industry practice through consultancy, auditing and training work ❖ In large outbreak cases, she is fundamentally a breach expert (reviewing systems), complimenting causation evidence of medics and microbiologists ❖ Advisor to ABTA and Chartered Institute of Environmental Health (CIEH) for 10+ years

When investigating a suspected case of cosmeticproduct-associated dermatitis, infection, respiratory distress, etc, question the identity and purity of declared ingredients and especially any botanical extracts. INCI names and CAS Registry Numbers tell us very little about the composition of botanical extracts.

Areas of work in the food safety arena include: Microbiological, chemical and physical contamination risk, food fitness, the due diligence defence, HACCP, staff training, travel related gastroenteritis, food poisoning incidents and outbreaks, food safety management and health risk criteria and statutory notices.

Areas of work in the infectious disease arena include: Norovirus on cruise ships, Norovirus in other hospitality settings e.g. hotels, other infectious intestinal diseases of protozoal, viral and bacterial origin, food poisoning and infections caught during employment such as Leptospirosis

If testing is to be carried out as part of a consumer safety-related incident, insist on receiving ingredients from the same batches as those used in the manufacture of the offending batch of cosmetic product. ■

Areas of work in health and safety include: Suitability of Health and Safety policy, general and specific risk assessment, employer’s and employees’ duties so far as is reasonably practicable, accidents and safe systems of work, safety in kitchens and food factories and health in kitchens and food factories.

The content of this article was the subject of an invited presentation at the 13th Congress of the European Society of Contact Dermatitis [ESCD2016], 14–17 September 2016 in Manchester, UK EXPERT WITNESS JOURNAL

MOONLIGHT Environmental Web: www.moonlightenvironmental.co.uk Tel: +44 (0)1303 210004 Email: office@me-ltd.biz

37

SUMMER 2017

Permanent Makeup (Also known as semi-permanent makeup, micropigmentation, cosmetic tattooing and microblading) and medical tattooing are procedures where pigment is tattooed into the skin for a long lasting cosmetic effect.

It was Captain Cook, the British explorer (1796) who first coined the word ‘Tattoo’. He was describing the Polynesian practise of placing black pigments under the skin.

Above, Digital machine. Mei-Cha iStar power source with Sterling handpiece)

Queen Cleopatra in ancient Egypt and others in India and Africa sought permanent eye enhancements with various substances over the years. Plant extracts were used, as well as ground coals (carbon) and nut pigments. These substances were inserted with any implement they could find which was suitable to file or grind into a sharp point. This was where Permanent Makeup, as we know it today, originated.

The procedure was introduced into Europe in 1983

by Dawn Cragg MBE. Being a makeup artist in the traditional sense, Dawn was teaching in Hong Kong when she came across someone having their eyebrows ‘tattooed’ by means of 1, 2 or 3 sewing needles attached to a wooden chopstick with white thread or cotton and dipped into a pigment of a suitable colour.

Hormonal imbalance later in life can cause a loss of eyebrow hair and eyelashes, as can chemotherapy, also one’s eyesight is often not as good as one gets older. The client may have mobility problems, which may make the daily application of conventional cosmetics either very difficult or altogether impossible. Permanent cosmetic procedures can also disguise scars whilst enhancing the eyebrows.

Above, photograph of a client who had a brow-lift scar, before & after, Eyeliner is a very effective procedure, for all the reasons mentioned in the paragraph above, but also for those who partake in sporting activities, or who work in a hot or humid environment, such as kitchen staff.

Thinking of her clients at home, in particular those with Alopecia or hair loss caused by drugs or surgical trauma Dawn quickly, after some practise, changed her makeup brushes for needles.

These days, and in most countries, sophisticated electrical machines are used and everything is disposable. All needles and cartridges used are placed immediately into sharps boxes for collection by a specialised company with licence to transport sharps and contaminated waste e.g. cotton buds, cotton wool, tissues etc.

EXPERT WITNESS JOURNAL

Above, Eyeliner, (& brows) before and after 38

SUMMER 2017

Medical micropigmentation, or medical tattooing as it is more commonly known, is used to give the appearance of reconstructing lost features, Many of the public will have heard of having the ‘areolae’ tattooed in following breast surgery, but do not realise that any white scar is also suitable for consideration, providing that the patients expectations are not too high and that they are in a good state of mental health.

Scalp Tattooing This comes under the category of medical tattooing, and it‘s popularity is rapidly increasing. One of the effects is of a no.1 haircut on males who have lost either all their scalp hair, or who are balding. It is also very effective on thinning hair for both male and females. The problem is choosing the right colour and density to allow for greying hair.

Above, Lady with thinning hair, before & after scalp tattooing

Above, Photograph of a lady’s arm with a skin-scrape, before & after The patient in the above photograph was approximately 40 years old and had self-harmed as a teenager. Later in life, she sought medical help to improve the appearance of her arm and was offered dermabrasion, (ski-scrape to remove the scarring).

Unfortunately her skin did not grow back as expected and the colour discrepancy made her even more self –conscious, resulting in having to wear long sleeves, even in hot weather. Medical tattooing, to give the appearance of freckles and various other irregularities of skin colour to match the surrounding skin had a dramatic and positive effect on the clients mental state, and she now feels able to wear short sleeves.

Above, Punch-graft scars after hair implants Loss of Eyebrows There are many reasons for the loss of hair on the eyebrows. Sometimes, especially in the more mature client, it can be over plucking. It can be alopecia and sometimes certain drugs can be the cause of hair loss.

This can have great psychological implications, and so in order to distract the patient from thinking only of her brows. It is often advisable to work on another area, either lips or eyeliner, as seen in the following photograph.

Medical tattooing offers a longer lasting alternative to the time-consuming and often daily chore of applying conventional camouflage products. It is most important to have the co-operation of the patient’s dermatologist, consultant or medical practitioner. In these days of increased medical litigation none us can afford to take any chances, and patients will sometimes only tell us what they think we want to know. In some cases a treatment prior to the tattooing may be recommended, such as laser, to remove erythema (superficial reddening of the skin.)

An increasing problem is there is not any legalisation at present in the UK, apart from local byelaws and terms and conditions as stipulated by the insurers which are not always adhered to. The worrying fact is that many technicians are insured to go mobile, working in a kitchen or bathroom, and with carpets instead of washable flooring, and often placing needles and contaminated waste in the kitchen bin, or in a wicker wastepaper basket.

EXPERT WITNESS JOURNAL

Above left, Alopecia patient with tattooed eyebrows Above right, Tattooed eyebrows and lips wearing a wig For patients with skin-type 4 and above, any trauma of the skin is even more of an issue. As a society, we are sometimes too forthright with our questions to those whose skin shows any discrepancy in either texture or colour.

39

SUMMER 2017

With the increasing public attraction to discount vouchers available through the internet, it seems that many people are only attracted to how cheaply they can get their permanent make-up procedures, and are not concerned at all about the expertise of the technician.

Advice therefore to anyone who is asked to correct the work of others is “if you want to keep out of court, don’t even think about it”.

Example of Tattooing for Psychological Reasons Above, Young man who picked the skin of his lips before Below, Young man after tattooing

Above, Eyebrows drawn on every day and wearing spectacle frames. Chosen because she thought that if she accidentally rubbed her ‘brows ‘off the frames would be a substitute

Advice to Technicans There are many cases, often the eyebrows, where the permanent makeup does not meet with the client’s expectations in terms of colour or design. This sometimes results in an inadvisable or unrecognised method of tattoo removal, which then further results in scarring and the client taking legal action. This example is closely followed by eyeliner that has migrated too deeply into the skin and ‘bleeds’, sometimes lower than the zygomatic bone (cheek-bone). Often, the technician will claim that the permanent makeup was carried out according to the client’s wishes, but the final result is not likely to be what would be expected from a trained and competent technician.

It is inadvisable for any technician to attempt to correct someone else’s work as in a court of law it is usually the last person to touch a client who is held responsible for the final result. Also the skin, once worked on with needles, will never return to its original condition, and there may be some scarring which the patient has not previously noticed. Nobody would want to be blamed for the work of another technician, but this does happen. Medical tattooing however, where the cause is surgical or accident trauma or a skin defect noticeable at birth, (for example a cleft palate,) can be life changing. This therefore would be acceptable with medical referral if the practitioner does not have a medically recognised qualification.

It would be nice to think that those who practise in permanent make-up would refrain from making claims regarding the quality of their work which are unjustifiable.

EXPERT WITNESS JOURNAL

Above, Tattooed eyebrows, still with spectacles for 6 months in case her tattooed eyebrows rubbed off.

Above, Brave enough to risk not wearing the spectacles 40

SUMMER 2017

Tattooed eyebrows and cosmetic bridal makeup, including her shoulders, by Dawn Cragg MBE

Dawn Cragg M.B.E Expert Witness trained with Bond Solon and accredited with Cardiff University.2004 & updated continually

Areas of expertise Permanent/Semi-Permanent Make-up (Micropigmentation) Eyebrows, Eyeliner, Guy-Liner & Lips Medical Tattooing Areolae, Hair Simulation, and Scar Camouflage Cosmetic Camouflage Creams for those not suitable for tattooing Non-laser Tattoo Removal For Permanent Make-up & Small Tattoos MTEC Limited, 58a Bridgegate, Retford, DN22 7UZ Area of work Nationwide Tel: 01777 860500 Mobile: 07875 498145 Email: dawn@dawncragg.net Website: www.dawncragg.net

Now, because she has ‘permanent makeup’ eyebrows, she is brave enough to marry her love of her life with whom she has four children.

Dr Elizabeth Soilleux

Dr Rajesh Rajendran

Consultant Histopathologist

Consultant Medical Microbiologist & Infection Control Doctor

MA, MB, BChir, PhD, FRCPath, European Board of Pathology, Cardiff University Bond Solon Expert Witness Certificate (Civil Law)

MBBS, FRCPath, Diploma in Infection Control (UCL) Dr Rajesh Rajendran is a Consultant Microbiologist & Infection Control Doctor based in Cheshire. He has a vast experience in management of infections and in infection prevention and control.

Practising Consultant Haematopathologist and Autopsy Pathologist based in Cambridge University Lecturer and fellow of Churchill College, Cambridge.

He is actively involved in the day-to-day management Health Care associated infections like Cdifficle and MRSA. He also has expertise in management of communicable diseases like TB and other tropical infections.

Expertise in:

His expert in diagnosis of infection, and is a specialist in Infection control within acute Hospital Trust in the NHS and in the community which includes contact tracing for communicable diseases and expert advice on community infection control.

Haematopathology - histopathological assessment of lymph nodes, bone marrow, thymus, spleen, lymphomas, leukaemias, myelomas, myelodysplastic syndrome,

Tel: 01625 661 832 Email: rajeshrajendran@nhs.net Maclesfield District General Hospital Pathology Department, Cooper Building, Victoria Road, Macclesfield SK10 3BL Area of work Nationwide

myeloproliferative disorders, benign conditions, including infections, molecular tests in haematopathology.

Autopsy (post mortem) pathology.

Contact: Tel: 07798 643879 Email: expwitpathol@gmail.com 60 Cow Lane, Fulbourn, Cambridge CB21 5HB

EXPERT WITNESS JOURNAL

41

SUMMER 2017

How Can Ultrasound Reduce Negligence Claims?

by Ekkehard Pietsch, Consultant Orthopaedic and General Surgeon, The-Expert-Witness.de, Hamburg The distal forearm fracture is one of most common fracture in the paediatric emergency department.

The golden standard of imaging is still the x-ray.

However, it’s sensitivity is low (Jørgsholm 2013i, Balai 2015ii). Several studies focusing on making the diagnosis based on Ultrasound examination could show the high sensitivity and specifity for the diagnosis of distal forearm fracture. We are presenting cases where the diagnosis of the fracture could have been missed on X-ray.

The cases: Case 1: A 14-year old boy fell on his outstretched right wrist whilst playing football. He could finish the match but complained of a gradual onset of pain and painfully restricted movements. On examination, he presented mildly swollen soft tissues over the distal forearm but no gross deformity. Pain on palpation of the distal radius and a function laesa suggested a bony injury.

The Ultrasound examination could show a mild angulation over the posterior metaphysis with a fracture in the cortex, highly suggestive of a bony lesion. His X-ray confirmed the diagnosis.

Material and methods: Paediatric patients presenting with acute distal forearm trauma and suspicion of a fracture were enrolled into the study. The young patients underwent a physical examination and an Ultrasound by the same orthopaedic surgeon before anteroposterior and lateral x-rays were obtained. The surgeon evaluated the findings Results: In total, 101 patients between 4 and 16 years of age were recruited with an average age of 11 years at the time of the trauma. There were 51 fractures that involved the distal radius in 86 cases, 9 injuries of the distal ulna, and 6 combined injuries (radius and ulna). 32 greenstick fractures were detected.

Specificity and sensitivity of ultrasound diagnosis were 99.5%.

EXPERT WITNESS JOURNAL

The Ultrasound shows cortical fragmentation and angulation in the metaphysis.

42

SUMMER 2017

intracutaneous hematoma though, but not very prominent. The wrist was painful on palpation of the distal radius without deformity or step.

Case 2: A seven-year old boy fell off a carrousel onto his forearm. He presented without significant soft tissue swelling but with pain on mobilisation. On examination, he was able to move the wrist, but showed painful restrictions at the extremes. There was pain on palpation of the distal radius. X-rays were unable to show the lesion. In retrospect, a cortical irregularity can be queried in the ap plane (arrow). Ultrasound, in contrast, found a cortical fragmentation in the metapyhsis.

X-rays rise suspicion with a positive fat pad sign and a possible cortical angulation over the dorsal aspect of the metaphysis.

Discussion: Studies evaluating the diagnostic accuracy of sonography in forearm fractures have been carried out in the paediatric population. Techniques are known as FAST POCUS, which stands for a “focused assessment with sonography for trauma“ and was initially used for Ultrasound examination of the abdomen and heart. POCUS stands for „point of care ultrasound“ and examines areas of interest, e.g. the painful forearm. It was found that the sensitivity of US examination for distal radius fractures was 100%.

But still, the gold standard diagnostic tests are x-rays in those studies.

False negative results for x-ray imaging have not been reported. It appears that they are more sensitive for detecting ulna fractures (Eckert 2012iii, Herren 2015iv.Williamson 2000v, Ackermann 2009vi, Chen 2007vii, Javadzadeh 20014viii, Kocarci 2015ix). With a sensitivity of almost 100%, Herren (2015)x suggested that a negative result in ultrasound may reduce the need for further radiographs in children with distal forearm lesions. But in any doubtful situation the need for conventional radiographs should remain.

The beauty of Ultrasound examination is the number of angles that can be applied whereas X-rays usually provide only two planes. Thus, pathologies in the interim junction can be visualised that would be possibly missed on films (Case 2). Even subtle changes, e.g. minor angulations become more obvious during the examination (Case 3).

The Ultrasound shows a cortical fragment extending from the metaphysis like a Salter Harris II lesion.

Case 3 An 11-year old girl fell whilst scating onto her wrist a day ago. Swelling started within hours after the accident but was not significant. Her mother wanted to wait and see what would happen. On examination, there was only little soft tissue swelling. There was an

The Ultrasound shows a slight cortical angulation but no frank fragment.

However, a different angle makes the angulation more noticable.

EXPERT WITNESS JOURNAL

43

SUMMER 2017

However, false positive results for radius fractures have been reported by Sivrikay (2016)xi. The authors discussed that the Lister tubercle may be seen like a cortical disruption that mimics a displaced fracture of radius on the longitudinal axis. Therefore, emergency physicians should be aware of potential false positive results with sonographic examination.

arm fractures in children: a safe and applicable alternative to standard x-rays. Pediatr Emerg Care. 2012; 28:851–854 v Williamson D., Watura R., Cobby M. Ultrasound imaging of forearm fractures in children: a viable alternative? J Accid Emerg Med. 2000; 17:22–24 vi Ackermann O., Liedgens P., Eckert K., Chelangattucherry E., Husain B., Ruchholtz S. Ultrasound diagnosis of forearm fractures in children: a prospective multicenter study. Unfallchirurg. 2009; 112:706–711

Conclusion US examination has excellent sensitivity for diagnosis of distal radius fracture and appears superior in detecting cortical irregularities. Emergency physicians should consider both Ultrasound and X-rays as diagnostic tools for young patients with distal forearm trauma. Ultrasound can close the gap between high clinical suspicion and a questionable or even unremarkable X-ray and prevent negligence claims as a result of missed fractures.

vii Chen L., Kim Y., Moore C.L. Diagnosis and guided reduction of forearm fractures in children using bedside ultrasound. Pediatr Emerg Care. 2007; 23:528–531 viii Javadzadeh H.R., Davoudi A., Davoudi F. Diagnostic value of bedside ultrasonography and the water bath technique in distal forearm, wrist, and handbone fractures. Emerg Radiol. 2014; 21:1–4 ix Kozaci N., Ay M.O., Akcimen M. Evaluation of the effectiveness of bedside point-of-care ultrasound in the diagnosis and management of distal radius fractures.

Am J Emerg Med. 2015; 33:67–71

References i Jørgsholm P., Thomsen N.O., Besjakov J., Abrahamsson S.O., Bjorkman A. The benefit of magnetic resonance imaging for patients with posttraumatic radial wrist tenderness. J Hand Surg Am. 2013; 38:29–3

x Herren C, Sobottke R, Ringe MJ, Visel D, Graf M, Müller D, Siewe J: Ultrasound-guided diagnosis of fractures of the distal forearm in children. Orthop Traumatol Surg Res. 2015 Jun;101(4):501-5. doi: 10.1016/j.otsr.2015.02.010. Epub 2015 Apr 21.

ii Balci A., Basara I., Cekdemir E.Y. Wrist fractures: sensitivity of radiography, prevalence, and patterns in MDCT. Emerg Radiol. 2015; 22:251–256 iii Chaar-Alvarez F.M., Warkentine F., Cross K. Bedside ultrasound diagnosis of nonangulated distal forearm fractures in the pediatric emergency department. Pediatr Emerg Care. 2011; 27:1027–1032

xi S Sivrikaya, E Aksay, B Bayram, N Colak Oray, A Karakasli, E Altintasa: Emergency physicians performed Point-of-Care-Ultrasonography for detecting distal forearm fracture. Turk J Emerg Med. 2016 Sep; 16(3): 98–101

iv Eckert K., Ackermann O., Schweiger B., Radeloff E., Liedgens P. Sonographic diagnosis of metaphyseal fore-

Ajit Ambekar MCh.Orth., FRCS(Eng), EWI

Consultant Orthopaedic Surgeon Cardiff University Law School Certificate as Medico-legal Expert

I am able to prepare expert witness reports and give evidence in court in my specialist areas of: • Orthopaedics and Bone and Joint Trauma • Muscle-tendons, peripheral nerves and soft-tissue injuries Extensive experience in management of fractures in adults and children (Exception: certain types of pelvic and cervical spine fractures.)

I will act for either claimant or defendant and also as a Single Joint Expert (Exception: ‘Breach of Duty’ Report in Clinical Negligence arena.)

As a Member of the Expert Witness Institute, London, my reports are in compliance of CPR 35, corresponding Practice Directions and the Civil Justice Council Protocol for Expert Witnesses.

As a Fellow of the American Academy of Orthopaedic Surgeons with Expert Witness Affirmation I am also able to provide percentage evaluation of Permanent Impairment, ‘DASH’ Score and the Judicial College Guidelines Category of Disability for international jurisdictions.

I am prepared to undertake reasonable travel if necessary.

T: 020 7467 8309 / 07922 607 948 E: aa@ortho-trauma.uk / ajit.ambekar@me.com 10 Harley Street, London W1G 9PF EXPERT WITNESS JOURNAL

44

SUMMER 2017

Selecting an Expert Witness in Dentistry: The Pitfalls Specialist in restorative dentistry, with over 20 years as an Expert Witness with a specific interest in dental negligence litigation claims, Toby Talbot shares his professional experience by way of guidance for those of you searching for the right expert witness.

Now let's assume the Expert accepts and the letter of claim and dental records are sent. I shall use a real clinical example to proceed…

Minimise cooks, not cost Many legal firms are initially approached by a Client venting their spleen about dissatisfaction with dental treatment. Un-resolved problems, protracted pain or poor communication are often the main precursors.

Surprisingly, if there is a good relationship, patient's will rarely complain, and actually blame themselves for things going wrong. In my experience, it is the fundamental breakdown of the relationship or the failure of its formation in the first place that drives most Claimants to seek legal redress.

Take a patient who has been under the care of a general dentist for 20 years before they discover, after attending another dentist, that they have advanced periodontal disease with bone damage that will invariably lead to tooth loss. A review of their dental records by the Expert shows limited documentation related to assessment of the gums, except intermittent advice to ‘brush their teeth a bit more’, and a routine scaling every six months.

After the letter of claim is prepared (with a resumé of the history of the complaint) providing the Claimant's view of events, the dental records of the miscreant are obtained and an Expert Witness opinion is sought.

When the patient attends another practitioner, they suddenly feel shocked and aggrieved due the ‘failings’ of their previous practitioner. Blame is apportioned, and a screening report follows after the review of the dental records highlights serial omissions.

Not uncommonly, there is a wish to minimise the costs to Claimant and Counsel at this stage. An Expert Witness having been located, an initial screening report which restricts the said Expert to a couple of hours of their time is requested to see if the case has any merit.

EXPERT WITNESS JOURNAL

A-ha! you exclaim. We've got him. Breach of Duty.

Now go for the jugular…

45

SUMMER 2017

In the meantime, the patient (now Client) trots off to a periodontist who reinforces the terrible state of the gums and the enormous costs of complex implant dentistry that is required to put things right. Due to the complexity of the proposed treatment, the former Expert cannot provide an opinion as he/she is a general dentist with no specialist training. In addition, their report did not allow them to examine the patient.

brusque delivery and a poor chairside manner as key pointers towards a lack of compassion for the patient.

Yours truly is then instructed to examine the Client, perhaps 18 months after they attended the periodontist, to provide the Current Condition, Prognosis and Treatment options in my capacity as a Specialist in Restorative Dentistry. At the consultation, the Client presents with ongoing severe active periodontal disease associated with abundant plaque deposits throughout. It is clear this patient has not taken a blind bit of notice, despite repeated visits to the periodontist, and is quite ill-suited to expensive dental implants. Not only do I consider that he/she is a candidate for conventional dentures, but I consider that he/she shows such a disregard for his own oral health, that in all probability he is behaving as he did with the Defendant, ignoring advice and failing to comply. In essence, the Client is wholly culpable for their own tooth loss. My report has now totally contradicted that of the first ‘Expert’.

However, communication is a two-way street. And effective communication begins with listening. And listening opens the door to understanding and trust, which is a great start to resolving any cracks that might appear.

And with our medical litigation rates knocking the stars and stripes off North America’s figures, this is a very serious matter for me and my fellows in the UK. Here, medical and dental practitioners have a four-fold greater chance of litigation compared with practitioners in New York.

Yet while the charnel house of healthcare litigation is piled high with the complaints of patients unhappy with the quality of care, when it comes to the clinching question of trust, things don’t seem quite as gloomy for dentists as they do for doctors.

Research conducted for the British Dental Health Foundation uncovered the warming news that people have more trust in dentists than doctors. 88 per cent of people surveyed claimed a very high degree of trust in their dentist, more so than in their doctor.

Twice as many people (19.7 per cent) value their relationship with their dentist over their doctor (9.9 per cent).

It may not surprise the Reader that Counsel are often furious with my conclusions and imply that I have ventured beyond their instructions for the Condition and Prognosis Report. Not so, I point out. My duty is to the Court. Their error is to assume that a second Expert will always agree with the conclusions of a previous Breach of Duty report. The only way to avoid contradictions between the two reports is to ensure only one Expert is engaged. In essence, the screening report was worthless. I advise Counsel not to waste their time (and money) - it rarely is worth the paper it is printed on.

So why is it, then, that so many patients fail to act on our advice? I am too often riled when I’m asked to assess a patient for a medico-legal report, only to find that they are suing their dentist for negligence, while at the same time neglecting themselves when it comes to the very basics of dental hygiene – like brushing their teeth regularly. And not smoking.

In one particular case I advised on, a lady was suing her dentist after 30 years of routine care. Finding herself needing emergency treatment, she attended a different dentist, who diagnosed advanced periodontal bone loss and imminent loss of several teeth. The unfortunate woman reported she was wholly unaware of the disease, which is when she commissioned a lawyer to sue for breach of duty for the costs of remedial dental treatment. This would include implants and crown work, which would likely total a five- figure sum.

Rather, I’d advise Counsel to always commission the same Expert to provide both Breach of Duty, Causation and Current Condition and Prognosis reports and request that the patient is examined.

If a patient examination is suggested, agree to it.

It is a tooth universally acknowledged that a single failure in good communications can land a dentist in want of a lawyer. Yes, I reside in Jane Eyre country and during my 20 years of practice in Bath and as an expert witness for medico-legal reports, I’ve learned that poor communication is the Northanger Abbey of reasons for patient litigation.

When I examined the patient, it was clear the disease was at an advanced stage and we discussed treatment options of removable and fixed prosthodontics. The patient was very distressed about losing her front teeth. Both parents had worn complete dentures, which she had been determined to avoid during all those years of giving up smoking. Unsuccessfully. Cigarettes were her comfort for the stresses of life.

In fact, more than 70 per cent of complaints can be attributed to poor communications, according to a review by a leading UK dental defence indemnity insurer. Their report highlights indelicate vocabulary, EXPERT WITNESS JOURNAL

When writing my reports as expert witness, it is part of my protocol to ask for the patients’ medical and 46

SUMMER 2017

dental records – including all dental practitioners before, during and following treatment by the defendant.

Remember who’s working for who The protocols between warring litigious parties are well established - Counsel represents their Client either acting for the Claimant versus the opposing defendant, practitioner or Health Authority, or for the Defendant in a claim for damages. The Expert acts for the Courts and must remain wholly non-partisan, a fact reiterated each time a report is formally addressed to the Court. But, however clearly drawn the battle lines, there are a several ways they can be so easily blurred...

This gives me the entire story. Regrettably, records showed the defendant was a little too economical with his notes. Although his 2011-14 notes made references to “ANUG” – Acute Necrotising Ulcerative Gingivitis, a serious infection of the gums that causes ulcers, swelling and dead tissues in the mouth – “gingivitis”, “heavy calculus deposits” and level three gum disease, there was no reference to pocket charting, bleeding indices or plaque scores. Schoolboy errors.

Experts will be wary of any initial requests for a brief review of any case when only limited documentation has been made available as part of a scouting exercise. This will usually be taken as an indication that Counsel is trying to determine whether a case has a favourable chance of success without spending any more money than necessary. Don’t try to do things on the cheap - it exposes the Expert if that opinion is not addressed to the Courts. If at a later date Counsel goes elsewhere for a more thorough report, the aforementioned Expert can find themselves with a claim against them if the later report contradicts their own. If any report is addressed to the Court, only the Court is able to act against the Expert.

Notably, our defendant had specifically recorded gaps between the front teeth that were causing the patient concern. He had clearly instructed her on oral hygiene repeatedly, and performed scaling. At her last visit to him, he again recorded her poor oral hygiene and bleeding.

What he seemed to have missed, however, was the diagnosis the second dentist discovered: advanced periodontal disease. This second dentist referred her to his hygienist for full pocket, plaque and bleeding indices before embarking on a programme of oral hygiene, scaling and root planning.

Don’t expect an expert to compile reports unless they have sight of all the relevant original documentation.

Summaries and transcriptions by legal and clerical staff are subject to typographical errors and omissions, not least because legal clerics don’t understand medical and dental terms, except at the most basic level.

At this point, dear reader, you may well point your finger and shake your head at the initial practitioner.

The indemnity insurers will reach for their cheque books. Settlement figures will be high.

But I had yet to examine her medical records. They made for difficult reading, uncovering a history of long-term depression with anti-depressant medication prescribed over 30 years. The patient had suffered breast cancer with surgery, radiotherapy and chemotherapy in 2011. Her separation from her husband in 2012 quickly led to divorce. Within the year her son would die in a motor bike accident and her daughter would be diagnosed with drug dependency...

Many cases are now finding their way to my desk following the outcome of a Conduct Committee hearing conducted by a professional body. This is invariably occurs when a case of Fitness to Practice has gone against the practitioner concerned. Although the Patient has had their day in Court, they still trot off to a Solicitor to sue for damages.

What the patient may not appreciate is that Fitness to Practice charges are not the same as the Failure in Duty of Care that has led to quantifiable damages or Causation.

The doctor or dentist may have overlooked certain blood tests or diagnostic x-ray's and is thus subject to criticism by the professional conduct committee, but unless this oversight has led to untoward consequences with subsequent harm or injury, there is no Causation and therefore no consequence of that omission.

And yet after all this, when I examined her, she still had plaque covering all her teeth even after she had been repeatedly warned of the causes of her periodontal disease.

My report ended with conclusions that the patient had continued to ignore oral hygiene instructions by both dentists even after she had been informed about the disease. In all probability, the deterioration of her periodontal disease was inevitable due to poor compliance. Pointing the finger of blame to the first dentist due to her own failings was noted. The case was dropped.

It is also worth noting that although a professional body commissions an Expert for guidance, their Expert never examines the Claimant. In my experience this can lead to misguided decisions against practitioners. When I have disagreed with the conclusions of Conduct Committees I have often been

The author avoids desktop commissions only and why it is advised that the patient/claimant is examined for every report commissioned.

EXPERT WITNESS JOURNAL

47

SUMMER 2017

Expertise with integrity.

HANDLING A NEGLIGENCE CASE? Dental consultant Toby Talbot, an independent expert witness with British and American training, has spent 20 years providing a fast track service for the legal community in cases of clinical negligence.

Toby assists courts, counsel and judges in making accurate and well-informed decisions in cases relating to restorative dentistry and all aspects of prosthodontics, periodontics, endodontics and implantology.

Consultation will be provided within days of written instruction and complete reports can be provided within ten days.

Toby Talbot BDS MSD (Univ of Washington) FDS RCS (Eng)

Causation, liability, prognosis and quantum are included, often rendering court hearings unnecessary.

toby@tobytalbot.co.uk tobytalbot.co.uk

Whether acting for the claimant or defendant, please call.

+ 4 4 12 2 5 4 2 6 2 2 2

told by instructing Counsel that I am not permitted to contradict their findings. A wholly misinformed assumption.

firms have resisted paying my fees which invariably leads to a claim in the small claims county court and a complete breakdown in our relationship.

Many an Expert will find themselves instructed to provide only a Current Condition, Prognosis and Future Treatment Report after Counsel have previously obtained a favourable Breach of Duty and Causation Report. Watch out for this. It is invariably made by an Expert who has made conclusions based on the documentation alone without examining the patient.

What you might nor appreciate is that the details of the clinical records will invariably influence prognosis. If I review the records and conclude after I have examined the patient that patient compliance is so poor that the previous practitioner was not to blame, then this will invariably influence my own treatment recommendations for that patient.

2. Avoid ‘scope creep’ One firm forwarded a list of 30+ questions which they stated were necessary because they considered my report failed to clarify certain issues. Furthermore, they did not expect to pay extra for the responses which took more two hours of my time. It was clear that from the questions provided indicated that the solicitor in question had awarded himself an honorary degree in dentistry.

3. Don’t edit Several firms have asked me to omit certain paragraphs that weaken their case. When I refused, they complained that I had sent the report in pdf format and asked me to re-send the report as a Word document!

In one case involving untreated periodontal disease I found in favour of the patient. Subsequent quantum of £3,600 was offered by the indemnity insurers which led me to file the records for archiving. Imagine my surprise when I received a demand for £30,000 from the patient's agents three months later as a consequence of my failure in my duty!

4. Bow to experience Some firms have tried accusing me of venturing outside and beyond my area of expertise. It is to be noted that, as a former hospital consultant and a Fellow of the Royal College of Surgeons, my understanding of general medical and surgical issues is likely to be a little more than the general dental practitioner. I have been responsible for patients undergoing critical care, victims of severe road traffic accidents, and head & neck oncology patients. But I am a dentist!

It transpired that during previous meetings with Counsel, the Client’s solicitor had indicated that he could expect a pay out of £35,000. As a consequence, he issued instructions to the same solicitor who had instructed me to sue for the difference of what he expected and what he finally received. The Author invites the Reader to consider whether there is an integrity issue, and whether the solicitor should have referred the case to another firm.

This old lag isn’t one to offer criticism without advice To avoid many pitfalls for the office of Counsel, I recommend due diligence is conducted by the solicitors’ office to ensure that the selected Expert can deliver the goods.

This is not an isolated incident. Over the last 20 years I have received several instructions from one of the larger legal firms in my home city of Bath. They have a dedicated division handling medico-legal instructions. One bright morning my clinic doormat was graced with a letter from them representing one of my own patients pursuing compensation for treatment received. Not only did they not consider the possibility of any conflict, but the patient was a solicitor himself from Dorchester. The case was subsequently dropped. Needless to say, I have refused to accept any instructions from them since.

If the case is simple and straightforward and thus wholly within the remit of a general practitioner, by all means commission a general dental practitioner. But you may need a dental expert.

The author had a recent conversation with an experienced solicitor who stated that she only commissioned a general dental practitioner as Expert Witness when the complaints were levelled against a general dental practitioner. She had concluded that the Expert would be judging the clinical protocols of the defendant at an appropriate level and not a gold standard as expected from the specialist. I explained to her that few general dentists had the knowledge of the literature with references to confront the advisers commissioned by the indemnity insurance team. It is my opinion that depending upon the main issues in case, a specialist practitioner is better able to support their conclusions with appropriate references that will be robust for presentation to the Courts.

How to avoid souring the relationship In my experience, the cause of unhelpful relations between Expert and Counsel are several, but avoiding them isn’t difficult…

1. Pay promptly I have received no response after sending a report and the anticipated payment of my fee fails to arrive on time. Firms have asked for a precise breakdown of time allocated for the report and then quibbled endlessly about minor typographical errors. Some EXPERT WITNESS JOURNAL

49

SUMMER 2017

A maxillo-facial surgeon can give you a critical appraisal of a wholly surgical issue. He or she cannot give a dental opinion. If the problems relate to periodontal disease, find yourself a Periodontist. If the problems relate to failed root canal treatments, find yourself an Endodontist. Failed denture or crown and bridgework? Get yourself a Prosthodontist. Is the case multifactorial and covers a broad range of dental problems? Get yourself a Specialist in Restorative Dentistry. They are all dentists, BUT they’re all different creatures.

And finally…

The Reader is reminded of the influence of the Wolfe Report a few years back. Partisan conduct whereby former practitioners would consider it their mission to protect colleagues has been stopped to reflect professional transparency and candour. Gone are the days whereby senior retired medical/dental colleagues can dabble in report writing for a bit of pocket money without finding themselves humiliated in Court, outed for being out of touch with current clinical practice. Court immunity has now become a thing of the past, resulting in a considerable reduction in our numbers. Professional training and registration of Expert Witnesses has at least culled the amateurs.

And don’t forget to checkout whether the Expert is still active at the coalface. The author attended a professional meeting in London quite recently and met a colleague who is very proactive as an Expert Witness. He has just celebrated his 85th birthday having retired as a clinician 20 years ago. How on earth can Counsel expect him to be up to date?

He will invariably find himself before a judge (in all probability and ironically of advanced years) giving evidence only to be publicly humiliated when asked the ultimate question by the opposing QC – when did you last undertake a similar procedure?

All the views and opinions expressed by the author are personal but I would welcome public debate on all the issues included.

Read more on my blog at tobytalbot.co.uk Toby Talbot BDS MSD (Washington) FDS RCS

Never miss a copy of the Expert Witness Journal by purchasing a subscription, receive your copy direct from our printer.

Call 0161 834 0017 or email:admin@expertwitness.co.uk

Dr J P Rosie

BDS MSc

Electrical Investigations

Forensic Odontology

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)

Please contact Dr Rosie at; 6, Harrockwood Close Irby, Wirral, Merseyside CH61 3XY

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

Tel: 01745 443175 Mobile: 07885 158 039 / 07963 963194 Fax: 01745 344574 Email: john_rosie@lineone.net John.Rosie@cd-tr.wales.nhs.uk(w) GDC No. 44540

EXPERT WITNESS JOURNAL

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

50

SUMMER 2017

The Dental Psychological Interface

by Mary Downie This first article in a two-part series seeks to explore the influence psychological theory has had on the practice of dentistry by looking at the dentist/patient relationship and dental anxiety Here are four main domains where the workings of the mind have had an influence on our daily practice.

These are: the dentist-patient relationship, dental anxiety, chronic oral facial pain and the stress of dental practice. In this article, I will address the first two domains and suggest ideas as to how both patients and the dental team would be better served by a more holistic body mind paradigm. In the next issue, I will discuss the final two influences. The duality of mind and body, first advocated in the 17th century by René Descartes, is finally beginning to find a home in Western medicine.

than a science. It was not until the late 1800s that it developed into a scientific subject.

The first psychology lab was at the University of Leipzig where Wilhelm Wundt studied reaction times. The father of American psychology was William James who wrote The Principles of Psychology and was interested in conscious human experience. The dichotomy of thought in psychology made its appearance in Austria around the same period, with the work of Sigmund Freud on the unconscious.

His psychoanalytic theory arose from work with hysterical patients were he proposed the unquiet mind derived from unresolved childhood conflicts.

The influence of the mind on the development and progress of disease, both physical and psychological, is receiving the research attention that it merits.

Descartes postulated that there was a real distinction between the immaterial mind and the material body.

Although mind and body are ontologically distinct substances, they causally interact.

The work of the Russian psychologist Ivan Pavlov heralded in the age of behaviourism, his most famous experiment being Pavlov’s dogs showing classical conditioning. This was soon followed by Skinner and operant conditioning looking at behaviour in terms of actions and consequences. Carl Rogers’ theory gave birth to the third force in psychology known as humanistic psychology. It emerged as a paradigm to counteract the limitations of behaviourism and psychoanalysis.

Psychology is defined in the Oxford dictionary as the scientific study of the human mind and its functions, especially those affecting behaviour. The etymology of the word is from modern Latin meaning the study of the soul.

Psychologists such as Rogers and Maslow were interested in the meaning and purpose of human behaviours. They were fascinated as to what conditions

The history of psychology dates back to the Ancient Greeks who regarded it as a philosophy rather EXPERT WITNESS JOURNAL

51

SUMMER 2017

This is fine rhetoric but words have no value unless they can be put into action. The following narrative, although not based in the dental surgery, involved a patient who sadly was in the end stages of oral cancer.

His name has been altered to protect his identity.

Many years ago, I had recourse to visit this man – let’s call him Bob – in hospital, he was dying from the ravaging effects of oral cancer. He was being fed through a peg tube and his breathing eased by a tracheostomy.

This gentleman had been a rough sleeper for most of his life and had enjoyed solace from a homeless centre where I worked. On visiting him in his hospital room I brought him shower gel and soap to which he promptly replied: “What the hell are you bringing me these for? I need Guinness and fags!”

afostered the growth of the human person to self-actualise within the constraints of their own environment. The term cognitive psychology was first used

by Ulric Neisser in 1967 and is a branch of psychology which is goal orientated and problem focused. The three main therapies arising from this way of thinking are: 1. Albert Ellis’s rational emotive behaviour therapy (REBT) 2. Aaron Beck’s cognitive therapy (CT) 3. #Donald Meichenbaum’s cognitive behaviour therapy (CBT) The main principles under lying these therapies were first voiced by William James at the beginning of the 20th century: “Thoughts become perception, perception becomes reality. Alter your thoughts, alter your reality.”

On exiting the room I put this request to the nursing sister; she looked at the patient and then myself and said to bring him some Guinness and some fags. On my next visit, I watched Bob syringe the Guinness into his peg tube and smoke his cigarette through his tracheostomy.

Today, psychology is very much rooted in neuroscience and neurobiology. The advent of magnetic resonance imaging has provided a non-invasive way of examining the human brain. The amygdala, hippocampus, and medial prefrontal cortex have been shown to be involved in the stress response and in PTSD. Research in this domain is bringing understanding as to how therapies like eye movement desensitisation and reprocessing (EMDR) and brainspotting might work.

That nurse had treated Bob as a human being, she had given him dignity and respect. This man had lived on the streets where alcohol and cigarettes, for whatever reason, had been his only consolation. At this end stage of his life the nurse had looked on him with empathy and unconditional positive regard and bestowed upon him the dignity of being permitted to die with the tools that had enabled him to live. She, within the limits of her environment, had not allowed rigid protocols to undermine the humanity of the other.

This brief introduction serves to demonstrate the plethora of knowledge that seeks to understand the human mind and human behaviour. The richness of psychological knowledge permeates into every area of society yet the primacy of this way of thinking is sometimes overlooked in the reductionist materialistic way that we teach our medical and dental students.

Empathy and unconditional positive regard in the dental surgery invites us to treat others as we would like to be treated ourselves. It does not judge or stereotype our patients but treats each individual as unique. In this uniqueness, the encounters with our patients hold the potential of enriching both our lives and the life of the other. In my experience, kindness is the medium through which empathy is conveyed to the patient. Unconditional positive regard is the prising of the other for no other reason than they are our fellow travellers on this earthly sojourn. To hold the other in a positive light is to convey to them that they matter, they are not simply another extraction or a bridge to be fitted. They too have a place in society and their wellbeing is of prime importance to us.

The research of Sherman at the University of Washington Dental school shows that there is a decrease in clinical empathy over the four-year training course. This mirrors the work done by Chen (2012) on medical undergraduates. Research demonstrates that students who have a high level of empathy are more competent at history taking, have a higher physician and patient satisfaction, decreased

Dentist-patient relationship The work of Mills et al (2015) attempts to classify the main indicators of a good patient experience. In the UK, the NHS Patient Experience Framework highlights the Picker Principles of Patient-Centred Care as the optimum way to provide care. This form of care embraces much more than the daughter test as it invites us to see the other through the lens of compassion.

Patient-centred patient care has evolved from the philosophy of the humanistic psychologist Carl Rogers. Rogers believed that the patient is the expert in their own lives and, if given the opportunity, will self-actualise within their own environment. He used the metaphor of a potato in a darkened room sending out shoots towards a crack of light. If a patient is treated with empathy, unconditional positive regard and congruence within the dental domain then the framework for a positive patient experience is put in place.

EXPERT WITNESS JOURNAL

52

SUMMER 2017

malpractice litigation and are significantly better at motivating patients.

aid the dental team in their treatment of patients with mild to moderate anxiety the website www.dentalfearcentral.org is an excellent resource for both staff and patients.

The importance of empathy in health care was emphasised in the Francis Report after the systemic failings at the Mid Staffordshire Foundation Trust.

The GDC in their Preparing for Practice document highlight the importance of communication and professionalism in the training of undergraduates. Much research is needed in defining clinical empathy and discovering how best it may be taught.

Patients who present with a moderate to severe level of dental anxiety should, in many cases, be referred to a secondary centre for the treatment of their dental anxiety. This secondary centre could be managed by a psychologist or a dentist with psychotherapy training (generic training or CBT training). The reason for this referral would be to assess the level of dental anxiety and also determine if there are any co-morbid psychological conditions.

Dental anxiety The 2009 Adult Dental Health Survey, commissioned by the NHS Information Centre, revealed that 36 per cent of adults had moderate dental anxiety and 12 per cent were classified as being dentally phobic managing their anxiety by avoidance of all things dental.

The impact of dental anxiety can have far-reaching consequences on a patients health and wellbeing, both psychologically and physically. Yet the literature reveals that there are no specific guidelines on the diagnosis or treatment of dental anxiety.

In research done at Kings by Kani et al (2012), 37 per cent of the patients who had dental phobia were also shown to have high levels of generalised anxiety, 12 per cent had clinically significant depression and 12 per cent were shown to have suicide ideation. A referral centre that would enable assessment of dentally anxious patients would compliment a sedation service and offer patients definitive tailored treatment to address their dental anxiety.

The work of Professor Tim Newton of King’s College London Dental Institute, Health Psychology Service and Art De Jongh of the Netherlands go along way to address this. Both authors offer a framework in which to classify dental anxiety and suggest different treatment modalities dependent of the level of anxiety.

They propose that mild dental anxiety can and should be treated in the dental surgery by the dental team.

A study done by Woolley in 2009 showed that individuals who are referred for sedation are highly anxious and fear a range of different dental stimuli. Yet previous research demonstrated that referring dentists to a sedation clinic did not consider psychological management for their patients. Sedation has, and always will have, a part to play in the management of dental anxiety but the only way to address the underlying issues is to complement the service with psychological interventions.

Research reveals that good interpersonal skills and empathy can of themselves decrease dental fear. Good communication enables the establishment of trust and a framework in which to carry out treatment. Precise information regarding the exact nature of treatment is essential to allay fears as is the establishing of a sense of control by adopting a stop signal. The “tell, show, do” technique has been about for more than 50 years and can be used for the simplest to the most complex treatment. There is also a place for the consideration of premedication and the use of nitrous oxide. The use of coping strategies such as distraction through visual or auditory stimuli and relaxation techniques all have part to play in mild dental anxiety management.

The study conducted by Kani et al (2012) showed that, of the 130 dentally phobic patients referred to the King’s College London Dental Institute, 79 per cent went on to have dental treatment without sedation. These patients were treated by CBT. This therapy has proven efficacy for the management of anxiety and depression. CBT is a synthesis of behaviour therapy and cognitive therapy which uses behaviour modification techniques and cognitive restructuring. It is a short-term therapy involving five to 10 sessions, usually of one hour duration. It is a collaborative enterprise and usually involves the patient doing homework.

Unlike many other psychotherapy treatments, it is a here and now therapy as what started a problem in the past is not often what keeps it going at the present time. The behaviour modification techniques involve such things as breathing exercises and in certain cases systematic desensitisation. The cognitive therapy involves identifying and challenging negative thoughts through the use of socratic questioning and the testing of hypothesis. The success of CBT is such that, in 2009, the Department of Health (England) recommended this therapy in conjunction with seda-

Hypnosis was first used in 1841 by the English physician James Braid and has been used in dentistry for well over half a century. It is a non-pharmacological method of inducing a trance-like state. In this state of altered consciousness, the patient is able to focus all of their attention on an image, thought or feeling and in so doing take their attention away from their feelings of anxiety. This method can also be very helpful in treating an overactive gag reflex, which is often found in dentally anxious patients. In order to EXPERT WITNESS JOURNAL

53

SUMMER 2017

tion services as a model of excellence in the management of dental fear.

practice can be positively influenced by looking outward from the biomedical model. The wisdom of great scholars has been revisited as we seek to offer both our patients and the dental team a more balanced and productive way of practising.

The comprehensive assessment of patients allows different psychological interventions to be considered in the treatment of patients. The work of Art De Jongh has shown that were patients have a specific memory of dental trauma, EMDR may offer complete resolution of their dental phobia. EMDR stands for eye movement desensitisation and reprocessing and has been used extensively in people suffering from post traumatic stress disorder. The traumatic nature of memory formation in these individuals means that the memory of the trauma is unprocessed and the person is plagued by intrusive thoughts and flashbacks. By a process of bilateral stimulation either visual or auditory, the memory is accessed and desensitised of its affective content and negative cognitions. The memory is then accessed again and reprocessed with much less affect and a positive cognition. I have found this to be very successful in two or three visits where a phobia follows on from a specific dental trauma even when that trauma occurred many years previously.

References Adult Dental Health Survey 2009, NHS Digital – content.digital.nhs.uk/pubs/dentalsurveyfullreport09) Chen DC, Kirshenbaum DS, Yan J, Kirshenbaum E, Aseltine RH. Characterizing changes in student empathy throughout medical school.

Med Teach. 2012;34(4):305-11. doi: 10.3109/0142159X.2012.644600.

DeJongh A, Adair P, Meijerink-Anderson M. Clinical Management of Dental Anxiety: What works for whom?

International Dental Journal (2005) 55, 73-80 De Jongh. A, Van Den Oord. H, Ten Broeke, E. Efficacy of Eye Movement Desensitization and Reprocessing in the Treatment of Specific Phobias: Four SingleCase Studies on Dental Phobia Journal of Clinical Psychology, Vol. 58(12), 1489–1503 (2002) GDC Publications Preparing for Practice – https://archive.gdcuk.org/newsandpublications/.../gdc%20learning%20outcomes.pdf) Halsband, Ulrike; Wolf, Thomas Gerhard; NLM Functional changes in brain activity after hypnosis in patients with dental phobia Journal of physiology, Paris109.4-6 (Dec 2015): 131-142.

Kani E, Asimakopoulou K, Daly B, Hare B, Lewis J, Scambler S, Scott S, and Newton JT. Characteristics of patients attending for cognitive behavioural therapy at one UK specialist unit for dental phobia and outcomes of treatment. British Dental Journal Volume 219 No. 10 Nov 27 2015 Mills I, Frost J, Kay E, and Moles DR. Person-centred care in dentistry – the patients’ perspective. British Dental Journal 218, 407 – 413 (2015) Published online: 10 April 2015 | doi:10.1038/sj.bdj.2015.248 Newton T, Asimakopoulou K, Daly B, Scambler S, and Scott S. The management of dental anxiety: time for a sense of proportion? British Dental Journal 2012; 213: 271-2 74 Sherman J and Cramer A. Measurement of Changes in Empathy During Dental School. Journal of Dental Education Vol 69 Number 3 Woolley SM, Summary of: Who is referred for sedation for dentistry and why? Published online: 28 March 2009 | doi:10.1038/sj.bdj.2009.233

Dental hypnosis has been revisited in the treatment of patients with moderate to severe dental anxiety. A study by Halsband et al (2015) has demonstrated that even brief dental hypnosis sessions can have an influence on the fear processing structures of the brain.

Twelve dental phobic patients and 12 healthy control patients were tested by a 3T MRI whole body scanner observing brain activity changes after brief hypnosis.

In the dental phobic group, dental fear was represented in the brain by increased activity in the left amygdala and bilaterally in the anterior cingulate cortex (ACC), insula and hippocampus (R<L).

Amazingly, during hypnosis the scan revealed significantly reduced activity in these areas. In the healthy group of patients, no amygdala activity was observed.

This study demonstrates objectively what hypnotherapists have been subjectively experiencing with their dentally phobic patients. In these times of great uncertainty, the wisdom of past ages is reemerging to show us a way forward without our heavy reliance on drugs.

The currency on which most psychological treatments thrive is time, unfortunately this is in short supply in busy NHS practices. In order to give dentally anxious patients the treatment that offers possible resolution of their condition, this paper proposes that psychological services must work in collaboration with dentistry.

About the author Mary graduated from Glasgow University in 1980 and from the Open University in 2001. She obtained a postgraduate diploma in counselling and psychotherapy from Stirling University in 2013. She has enjoyed a plethora of experiences in dentistry both in the UK and abroad.She especially enjoyed her post in Glasgow University teaching oral surgery. Mary is now in full-time psychotherapy practice but would like to combine psychotherapy and dentistry if the right post became available.

Article first appeared in Scottish Dental Magazine – April 2017

This article has attempted to demonstrate that psychology can and does have an influence on the way we treat and manage our patients. The next article seeks to show how the treatment of chronic oral facial pain and the stress encountered in dental EXPERT WITNESS JOURNAL

54

SUMMER 2017

Psychological Trauma

by Joanna Beazley Richards MSc. The study of psychological trauma has been accompanied by an explosion of knowledge about how experience shapes the central nervous system and the sense of the self. Developments in the neurosciences, developmental psychopathology and information processing have contributed to our understanding of how brain function is shaped by experience and that life itself can continually transform perception and biology. The study of psychological trauma has probably been the single most fertile area in helping to develop a deeper understanding of the relationship among the emotional, cognitive, social and biological forces that shape human functioning. nâ&#x20AC;&#x2122;t involve physical harm. Trauma Article for Expert Witness By Joanna Beazley Richards MSc 2 Itâ&#x20AC;&#x2122;s not the objective facts that determine whether an event is traumatic, but our subjective emotional experience of the event. The more frightened and helpless we feel, the more likely we are to be traumatized.

What is emotional and psychological trauma?

Different experts in the field of psychology define psychological trauma in different ways. Emotional and psychological trauma is the result of extraordinarily stressful events that shatter our sense of security, making us feel helpless and vulnerable in a dangerous world. A traumatic event or situation creates psychological trauma when it overwhelms the individual's perceived ability to cope, and leaves that person fearing death, annihilation, mutilation, or psychosis. The individual feels emotionally, cognitively, and physically overwhelmed. The circumstances of the event commonly include abuse of power, betrayal of trust, entrapment, helplessness, pain, confusion, and/or loss.

There are vast differences among people who experience trauma, but the similarities and patterns of response cut across the variety of stressors and victims, so it is very useful to think broadly about trauma. It is an individual's subjective experience that determines whether an event is or is not traumatic. Psychological trauma is the unique individual experience of an event or enduring conditions, in which the individual's ability to integrate his/her emotional experience is overwhelmed or the individual experiences (subjectively) a threat to life, bodily integrity, or sanity.

(Pearlman & Saakvitne, 1995, p. 60)

Traumatic experiences often involve a threat to life or safety, but any situation that leaves us feeling overwhelmed and alone can be traumatic, even if it doesEXPERT WITNESS JOURNAL

56

SUMMER 2017

Trauma has the same neurological effects on everyone, leaving the part of the brain usually involved in problem solving, analysis and clear thinking severely compromised. (Van der Kolk, 2014).

• When our own resources fail, social support can restore homeostasis. Many of the clients we see will have lacked social support at the time of their traumatic experiences. (Rothschild, 2000)

A psychological trauma can occur when a person has experienced either a single event or long lasting or repeated events that are so overwhelming that one’s ability to cope or make sense of what happened is affected. (Seigel, 1999).

How people may feel when they have experienced a traumatic event.

Typical reactions that people may feel after a traumatic event include: • Constantly thinking about the event.

• Images of the events keep coming into their mind.

• Difficulty sleeping and/or nightmares.

• Changes in how someone feels emotionally, i.e. frightened, sad, anxious, angry.

• Avoiding certain situations that remind the person of the event.

• Feeling numb, stunned, shocked or dazed and have difficulties connecting with life around them.

• Denial that the event actually happened.

Everyone has different ways of responding to events.

What one individual finds traumatic another person may not find distressing.

Examples of traumatic events include: • Serious accidents, e.g. road traffic collisions.

• Being threatened with violence, or actually experiencing violent attack.

• Being betrayed.

• Loss and grief.

• Someone being told they have a life threatening (terminal) illness.

• Physical, emotional, spiritual or sexual abuse.

• Neglect.

• Natural or man made disasters.

• Being taken hostage.

• Bullying.

It is very common to experience distress following a traumatic event. In most cases, the emotional reactions get better over the days and weeks that follow a trauma. (Browne, 1993).

People may feel a wide range of emotions, including: Anger – in relation to what happened to the person and with other people involved.

A stressful event is most likely to be traumatic if: • It happened unexpectedly.

• We were unprepared for it.

• We felt powerless to prevent it.

• It happened repeatedly.

• Someone was intentionally cruel.

• It happened in childhood.

• Emotional and psychological trauma can be caused by single-blow, one-time events, such as a horrible accident, a natural disaster, or a violent attack.

• Trauma can also stem from ongoing, relentless stress, such as living in a crime-ridden neighbourhood or struggling with cancer.

Guilt – When the person thinks they could or should have done something to prevent what happened (they may feel they were to blame), or that they survived when others suffered or died.

Frightened – that the same event may happen again or they feel they are unable to cope with their feelings. They may feel that they are not in control of what is going on.

Helpless – feeling that they were unable to do something about what happened.

Sad – that the trauma happened or that someone was injured or killed, especially if you knew them.

Commonly overlooked sources of emotional and psychological trauma.

• Being burgled or robbed.

• Falls or sports injuries.

• Surgery (especially in the first 3 years of life).

• The sudden death of someone close.

• The breakup of a significant relationship.

• A humiliating or deeply disappointing experience.

• The discovery of a life-threatening illness or disabling condition.

Ashamed or Embarrassed – by what had happened and they feel they cannot tell anyone about it.

Emotional symptoms of trauma may include: • Shock, denial, or disbelief.

• Anger, irritability, mood swings.

• Guilt, shame, self-blame.

• Feeling sad or hopeless.

• Confusion, difficulty concentrating.

• Anxiety and fear.

• Withdrawing from others.

• Feeling disconnected or numb.

Outcomes of traumatic events.

• Successful motor response (flight/fight/freeze) returns the person to homeostasis.

• Failed response (immobilization), results in conditioned hormonal response, dissociated from effective physical action.

EXPERT WITNESS JOURNAL

Physical symptoms of trauma may include: • Insomnia or nightmares.

• Being startled easily.

• Racing heartbeat.

57

SUMMER 2017

• • • • •

Aches and pains.

Fatigue.

Difficulty concentrating.

Edginess and agitation.

Muscle tension.

A number of risk factors make people susceptible to emotional and psychological trauma. People are more likely to be traumatized by a stressful experience if they’re already under a heavy stress load or have recently suffered a series of losses. People are also more likely to be traumatized by a new situation if they’ve been traumatized before – especially if the earlier trauma occurred in childhood. (Herman, 1992).

The traumatic event is over, but the person's reaction to it is not. The intrusion of the past into the present is one of the main problems confronting the trauma survivor. Often referred to as re-experiencing, this is the key to many of the psychological symptoms and psychiatric disorders that result from traumatic experiences. This intrusion may present as distressing intrusive memories, flashbacks, nightmares, or overwhelming emotional states.

Trauma Treatment.

Some people recover from a trauma with no or little additional support, especially if symptoms are mild.

However, many people can develop chronic symptoms that can be long lasting. Post Traumatic Stress Disorder (PTSD) is the name given to describe these symptoms. (Allen, 1995)

Post Traumatic Stress Disorder (PTSD).

PTSD is the most severe form of emotional and psychological trauma. Its primary symptoms include intrusive memories or flashbacks, avoiding things that remind them of the traumatic event, and living in a constant state of “red alert”.

However, in some cases the effects of a trauma can be longer lasting and continue for months and even years after the event. Receiving the appropriate type of support can help the person come to terms with the traumatic experience so that it does not continue to affect them for the rest of their life.

If someone has PTSD, it’s important to see a trauma specialist.

Psychological support can be very effective in helping people with PTSD. Therapies available on the NHS include Eye Movement Desensitisation and Reprocessing (EMDR) and trauma focused Cognitive Behavioural Therapy (tf-CBT).

PTSD is the only diagnostic category in the DSM that is based on aetiology. In order for a person to be diagnosed with PTSD, there has to have been to be a traumatic event. Because most diagnoses are descriptive and not explanatory, they focus on symptoms or behaviours without a context: they do not explain how or why a person may have developed those behaviours (e.g., to cope with traumatic stress).

It is important you visit your GP as soon after a trauma as possible. They can help to signpost you to the most appropriate early support or more specialist psychological services if symptoms persist.

A typical Trauma Treatment Involves: • Establishing a therapeutic alliance.

• Establishing safety and empowerment.

• Learning how to regulate strong emotions.

• Processing trauma-related memories and then feelings.

• Discharging pent-up “fight-or-flight” energy.

• Building or rebuilding the ability to trust other people.

• Reconnecting with life and relationships.

• Having a sense of a positive future.

DSM-5 Criteria for PTSD. MSc 6 In 2013, the American Psychiatric Association revised the PTSD diagnostic criteria in the fifth edition of its Diagnostic and Statistical Manual of Mental Disorders (DSM-5) (1). The DSM 5 says: “Diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms; the seventh assesses functioning; and, the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. Two specifications are noted including delayed expression and a dissociative subtype of PTSD, the latter of which is new to DSM-5.”

References Allen, J. G. (1995). Coping with Trauma: A Guide to Self-Understanding. Washington, DC: American Psychiatric Press.

Browne, A. (1993). Violence against Women by Male Partners: prevention, outcomes and policy implications.

Am Psychol 48:1077-1087.

Risk factors that increase our vulnerability to trauma.

Not all potentially traumatic events lead to lasting emotional and psychological damage. Some people rebound quickly from even the most tragic and shocking experiences. Others are devastated by experiences that, on the surface, may appear to be less upsetting.

EXPERT WITNESS JOURNAL

Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (2013) American Psychiatric Association, Washington.

Herman, J. L. (1992). Trauma and Recovery, New York: Basic Books.

Pearlman, L. A. and Saakvitne, K. W. (1995). Trauma and the Therapist. New York: Norton.

58

SUMMER 2017

Rothschild, B. (2000). The Body Remembers: The psychophysiology of trauma and trauma treatment. New York: W. W. Norton & Company.

Siegel, D. (1999). The Developing Mind. New York: The Guildford Press.

The National Institute for Clinical Excellence Guidelines Clinical guideline [CG26] Published date: March 2005 https://www.nice.org.uk/guidance/cg26/chapter/1Guidance#the-treatment-of-ptsd Van der Kolk, B. (2014). The Body Keeps the Score.

London: Allen Lane.

The Author.

Joanna Beazley Richards is the Principal of Wealden Psychology Institute, Crowborough,which was established in 1986. Joanna is an HCPC registered Clinical Psychologist and Practitioner Psychologist, BPS Chartered Psychologist and UKCP Registered Psychotherapist, offering clinical, forensic and organisational consultancy, training, supervision and psychotherapy.

Joanna is a Registered Expert Witness, preparing psychological reports for the legal profession; currently filing on average one a week in relation to personal injury, family, and criminal matters.

6 %7,-6 96)7,-

Dr Joshua Adedokun

32 ! ! ! 32 ! 32 #!

FCARCSI, FRCA, FFPMRCA

Chronic Pain Expert

<4)68 $-82)77 -2 90896%0 )0-+-397 8,2-' 779)7 -2 -8-+%8-32 <4)68 $-82)77 -2 0-2-'%0 )+0-+)2')

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.

7 % 74)'-%0-78 -2 90896)7 )0-+-327 %2( 8,2-'-8-)7 7-2') ,%:) ;6-88)2 6)43687 +-:)2 %(:-') %2( ):-()2') -2 86-&92%07 36 '39687 2 '%7)7 3* 1)(-'%0 2)+0-+)2') (-7'6-1-2%8-32 -2 )1403=1)287 4)6732%0 -2.96-)7 %''-()287 196()6 -259-6-)7 &= 430-') *%1-0= 36 1%6-8%0 (-7498)7 ',-0( %&97) 7)<9%0 %&97) -11-+6%8-32 %7=091 %2( 38,)6 0-8-+%8-32 '%7)7

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.

%2+9%+)7 743/)2 2+0-7, #6(9 -2(- 92.%&-

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.

98,36 3* >" ! # "# ?

)%0-2+ ;-8, %8-)287 *631 (-**)6)28 90896)7 )0-+-327 8,2-'-8-)7

328%'8 ")0

%<

3&

1%-0 (6&%7,-6596)7,- ,381%-0 '31 $)& ;;; (6&%7,-6596)7,- '31 )+6%') :)29) 392703; $)78 -((0)7)< "$ !

Contact:

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

EXPERT WITNESS JOURNAL

59

SUMMER 2017

Impartiality of Expert Witness: Defining and Measuring this Construct

by Hugh Koch & Paul Elson, Chartered Psychologists Hugh Koch Associates, Cheltenham,UK Physical and psychological evidence in civil case claims impacts significantly on legal discussions (1). To obtain this evidence, the court relies on medico-legal expert witnesses to be impartial, independent and fair. But how can this construct ‘impartiality’ be defined and, once defined, how can it be operationalised and measured? Only then can the appropriate training and continuous professional development (CPD) be provided to ‘raise the bar’ of expert witnesses in this crucial area.

“I have not included anything in this report which has been suggested to me by anyone, including the lawyers instructing me, without forming my own independent view of the matter.”

The word ‘impartiality’ is a broad concept and can denote different practices (2). It includes the following ideas: 1) Opinion free of bias or prejudice 2) Even handedness 3) Basing opinion on objective criteria

The duties of an expert witness are to help the court in matters within their expertise, overriding any perceived obligation or partiality to the instructing party and requires them to deal with cases proportionally, expeditiously and fairly (9). The Civil Procedure Rules (CPR; 1999) exhort experts, in the expert’s declaration as follows:

EXPERT WITNESS JOURNAL

4) Absence of distortion of information presentation 5) Critical analysis with recognition of biases 6) Understanding the influences experienced This is also referred to us in the European Union Law in the Charter of Fundamental Rights (of the EU) in the following reference: “Every person has the 60

SUMMER 2017

right to have his or her affairs handled impartially, and fairly by agencies of the Union”. (Article 41) (3).

Impartial and valid use of scientific evidence Expert witnesses play a pivotal role in offering scientific evidence to the court (4). Lawyers tend to prefer forensic science over social and psychological science in criminal cases but it is not clear whether this occurs in civil cases. In all probability, due to a lack of understanding, lawyers are often unclear about the importance of social and psychological science and research relating to the court and provision of robust, impartial evidence. There is a continued need for the education of lawyers and court room personnel regarding the utility of social science in the legal system and how this helps to identify how prior beliefs and prejudices impact in court.

Manifestation of Expert Witness Impartiality Independence and impartiality in expert witness behaviour is seen in the following ways: Objectivity – the fair and equal treatment of claimants Operational Impartiality – assessment not linked to any other professional or business pricing factors Objective Impartiality – assessment procedures must appear impartial to the claimant, defendant and others Internal Impartiality – the various functions of the assessment must be coordinated logically (e.g. testing, behavioural analysis, mental state examination or physical examination)

Relationship between Impartiality and Certainty Expert Witnesses are encouraged to express certainty when describing their ‘expert opinion’ – historically this has taken the form of general pronouncement rather than empirical data analysis. Experts typically express this general certainty with phrases such as ‘on the balance of probabilities’ and ‘predominantly’ or ‘partially’. Experts have a long standing ambivalence about these terms when called upon to convey their level of confidence in their opinions (5).

There are several types of bias which can be evident: a) Confirmation Bias – tendency to highlight supporting ideas rather than differing ideas b) Belief Perseverance – stubborn insistence on a belief despite established contradictory evidence(s) c) Overconfidence Bias – tendency to reach decision when some supporting evidence exists but not all evidence has been critically examined

The concept of Intolerance of Uncertainty (10) has recently been applied to expert psychologist witnesses (6) both in terms of its prospective (future-orientated) factor and behavioural (dealing with uncertainty) factor and how to manage and tolerate the emotional experience of uncertainty

Objectivity and Impartiality Ways in which expert witnesses operationalise impartiality include: 1) Verifying information in several sources (i.e. not relying on just one or two sources of information)

Impartiality and the medico-legal trail There are many pitfalls for the unwary expert (8) at different stages in the typical medico-legal trail (Fig 1)

2) Examining and evaluating information and its sources (identifying potential bias in what sources are selected/used) 3) Having procedures to deal with any conflicts of interest in providing an expert opinion 4) Being transparent about how assessment(s) are carried out and conclusions reached

1, Instruction letter to expert

2, Interview with Claimant

8, Court attendance

7, Joint opinion discussion

Below, Fig 1 – Typical Medico-legal Trail

3, Report discussion and clarification

6, Further clarification correpondence

4, Claimant side case conference

5, Part 35 questions from Defendants

9, Claim Resolution

EXPERT WITNESS JOURNAL

61

SUMMER 2017

At each stage, the impartiality and independence of the expert is as shown in Fig 2 below:

• Disciplined thinking that is clear, rational, open-minded, and informed by evidence

Implications of Impartiality An expert witness should recognise the utmost importance of impartiality and the potential conflicts of interest in promoting confidence and certainty about expert opinions. The highest standards of independence and impartiality should be applied to all assessment and reporting activities in accordance with best practice.

• Reasonable, reflective thinking • Purposeful, self-regulatory judgment which results in interpretation, analysis, evaluation, and inference, as well as explanation of the evidential, conceptual, methodological, or contextual considerations upon which that judgment is based

An expert should utilise and display a level of critical thinking that facilitates an objective analysis of facts from complex, various sources as follows: • The process of actively and conceptualising, applying, analysing, synthesizing, and evaluating information to reach a conclusion EXPERT WITNESS JOURNAL

• Thinking about one’s thinking in a manner designed to organise and clarify, raise the efficiency of, and recognise errors and biases in one’s own thinking

62

SUMMER 2017

The expert uses critical thinking to solve evidential problems – using critical thinking to improve the process of thinking (7).

Conflict of interest and objectivity behaviours should be covered through annual training or CPD sessions to ensure all assessment activities are conducted in an independent, and impartial manner.

Measuring Expert Impartiality Current research is underway to measure levels of impartiality amongst expert witnesses. This will be subject of future publication. A prototype scale for this has been developed by the second author and is shown in Fig 3 below.

From a cognitive/emotional view point, the ability to maintain a critical thinking impartiality requires the expert to use mindfulness and anxiety management to tolerate the uncertainty inherent in complex presentations, in the general context of good time and paper management. n

Fig 3 - Scale for Assessment of Expert Impartiality Topic

Scale Sometimes

Never When assessing a claimant do you make yourself aware prior to the interview of whether you are being instructed by the claimant solicitor or defendant solicitor?

Always

1

2

3

4

5

1

2

3

4

5

1

2

3

4

5

Would you challenge the claimant if they were describing unusual/possibly false psychological symptoms alleged to have arisen from the accident?

1

2

3

4

5

Is it important to you to seek/consider corroborative evidence in order to assist you in informing an expert opinion, e.g. medical evidence, psychometric scores, etc?

1

2

3

4

5

Would you challenge the claimant if the corroborative evidence conflicted with the psychological symptoms they alleged arose from the accident?

1

2

3

4

5

1

2

3

4

5

Would having an awareness prior to the interview of whether you were being instructed by the claimant solicitor or defendant solicitor influence your expert opinion of the claimant’s psychological problems from their injury?

Do you believe the claimant’s account of their psychological injuries without question?

Would you amend your initial opinion if you reviewed corroborative evidence that conflicted with the psychological symptoms the claimant alleged arose from the accident?

Are you familiar with the Civil Procedure Rules?

Yes

References 1. Koch HCH (2016) Legal Mind: Contemporary Issues in

Training and CPD Having formulated a logical understanding and definition of impartiality, a practical implication is the provision of training and development in perceptions, inclinations and behaviours to provide opinions in an impartial way and action ways, as an expert witness, which takes into account and corrects inherent biases.

Psychological Injury and Law. Expert Witness Publications.

Manchester.

2. Stanford (2017) Impartiality. Stanford Encyclopaedia of Philosophy.

3. European Parliament, Council and Commission (2012) Charter of Fundamental Rights of the European Union.

26.10.12.

Training in types of errors and biases inherent in expert work is important. Basic recognition of scientific validity and reliability including personal or self-serving biases would be beneficial.

EXPERT WITNESS JOURNAL

No

4. Wechsler HJ, Kehn A, Wise RA & Cramer RJ (2015) Attorney Beliefs Concerning Scientific Evidence & Expert Witness Credibility. Int. J. Law and Psychiatry 41,58-66.

63

SUMMER 2017

5. Drogin EY, Commons MC, Gutheil TG, Meyer DJ and Norris DM (2012) â&#x20AC;&#x2DC;Certaintyâ&#x20AC;&#x2122; and Expert Mental Health Opinions in Legal Proceedings. Int. J. Law and Psychiatry.

35, 348-353.

6. Koch HCH, Carleton RN & Cosway R (2016) Managing Uncertainty in Experts: What are the key issues? Expert Witness Journal 7. Wikipedia (2017) Critical Thinking. www.wikipedia.org/wiki/critical_thinking 8. Koch HCH (2017) Impartiality of Medico-Legal Experts.

Expert Witness Institute Newsletter. Spring.

Other bodies unrelated to the Civil Justice system have been consulted over impartiality. These include: The Ombudsman Association; Finnish Accreditation Service (FINNAS).

Need an Forensic expert or any expert from A-Z Call our free searchline on

0161 834 0017

Mr Godfrey Charnley Consultant Orthopaedic and Trauma Surgeon MBBS, FRCS, FRCSEd, FRCS (Orth) Mr Godfrey Charnley is a Trauma and Orthopaedic Surgeon who has been practising in Orthopaedics for some 20 years as a Consultant with a particular interest in Hip and Knee replacement surgery.

Mr Charnley has published four chapters in Orthopaedic Textbooks and authored or co-authored over fifty pieces of original research as papers or presentations in leading Journals and at International meetings. He reviews scientific articles for Hip International, the Journal of the European Hip Society and the Bone and Joint Journal.

Mr Charnley has been involved in Medico-legal work including general musculo-skeletal injury for over 25 years, and more recently as an expert witness in relation to Medical Negligence and Product Liability associated with hip replacement surgery.

Contact: Mr Godfrey Charnley Email: carol.harris@ramsayhealth.co.uk Tel: 01245 234 020 Fax: 01245 234 059 Address: Springfield Hospital, Lawn Lane, Springfield, Chelmsford CM1 7GU Mr Charnley has Medico-Legal clinics in East Anglia, the North East, Central London & the South West

EXPERT WITNESS JOURNAL

64

SUMMER 2017

The Mental Capacity Act & Psychological Assessment: The Story So Far

by Dr Richard Maddicks, Consultant Clinical Neuropsychologist, Psychology Chartered themselves wherever possible, and by protecting people who lack capacity by providing a flexible framework that places individuals at the heart of the decision-making process’ 2.

The enduring paternalism of health services along with risk aversion in social care are specifically identified by the House of Lords Select Committee report as obstacles to embedding the principles of the Act in the day to day practice of professionals. In short, organisational cultures and broader political context are likely to militate against professionals changing how they think and practice about mental capacity.

‘The empowering ethos has not been delivered. The rights conferred by the Act have not been widely realised. The duties imposed by the Act are not widely followed’. House of Lords Select Committee (2014) on the Mental Capacity Act 2005 1 Like a captious mid-term report or Theresa May’s General Election post-mortem, the House of Lords Select Committee review of the implementation of the Mental Capacity Act (MCA) (2005) is unforgiving and offers up plenty to reflect on. The harsh appraisal is far removed from the legislation’s laudable intentions and prima facie commitment to protect the most vulnerable adults in society: ‘The primary purpose of the Mental Capacity Act (2005) is to promote and safeguard decision-making within a legal framework ……. by empowering people to make decisions for

EXPERT WITNESS JOURNAL

However, ideological changes of this type are rarely meteoric and more typically incremental and anfractuous. The review may have failed to identify elusive changes in professional practice in health care. For

65

SUMMER 2017

example, the British Psychological Society Audit Tool for Mental Capacity Assessments suggests that ‘Applied psychologists have generally engaged well with the Mental Capacity Act and have viewed it as a useful means to empower and protect vulnerable groups’ 3. MCA guidance has possibly served to fortify the imperative of decision/issue specificity, provided a framework for best interest decision-making and elevated the importance of understanding the patient’s beliefs and values in the assessment process. The views and actions of clinical professionals and services must reference the broad ethos of the legislation i.e. that mental capacity is assumed and an ‘impairment of mind’ is a necessary but not sufficient condition of depriving someone of the right to make their own decisions, even if these decisions are imprudent or ‘unwise’. In respect of the latter, psychological assessment of the patient will often provide critical and nuanced evidence relating to the patient’s understanding of the issue(s), processing/retention of key information and broader reasoning abilities.

Psychological assessment may include evidence from formal cognitive testing and scoring profiles including a range of psychometric measures, with reference to psychological theoretical models and concepts.

Prudent interpretation and clear explanation of this evidence invariably becomes an important part of the task of weighing evidence in mental capacity assessments. If the House of Lords 2014 report serves as a hiatus in how we approach questions of mental capacity for vulnerable adults, what follows is a timely reflection on key aspects of psychological evidence.

appear to have ‘face validity’. For example, ‘failure’ on specific tests of deductive reasoning is likely to be directly relevant to the patient’s capacity to weigh up relevant information in the relation to the decision(s) in question (Newby & Ryan-Morgan, 2013 5). Studies of the cognitive predictors of financial abilities found that some cognitive functions are more heavily associated with finance-related functional status such as attention, executive functions, memory, working memory, verbal abstraction and arithmetic. Meanwhile, in the assessment of testamentary capacity there may be a bias towards memory (recognition as well as spontaneous recall), orientation, expressive and receptive language, and executive functions.

Despite these important observations, there are several points that psychologists and lawyers should always hold in mind when considering the contribution of psychometric evidence. Firstly, it is widely recognised that psychometric tests have limited predictive value in determining a client’s capacity. Secondly, it is normal for healthy children and adults to have some variability in their cognitive abilities and furthermore, to produce low scores, particularly when multiple tests are administered (Brooks et al, 2013 6). Thirdly, multiple test administration increases the risk of ‘false positives’ or type 1 errors, (i.e. incorrectly identifying erroneous impairments) necessitating extra caution in interpretation, an adjustment of the threshold of significance or the ‘Bonferroni correction’.

The psychology of decision-making

‘We think that we make our decisions because we have good reasons to make them. Even when it's the other way around. We believe in the reasons, because we've already made the decision’. (Daniel Kahneman)

Seduction by statistics: the perils of psychometric assessment

Facts are stubborn, but statistics are more pliable.

(Mark Twain) Whilst neuropsychological tests can be used for diagnostic purposes, their primary function in relation to capacity assessments is often in relation to step two of the MCA test i.e. is the impairment or disturbance of mind sufficient that the person lacks the capacity to make a particular decision? Psychologists will often emphasise the importance of test results in the capacity assessment process, reflecting their usefulness as objective evidence, augmenting or elaborating other clinical information and offering standardised, ‘norm’ based information relating to the patient’s cognitive skills and impairments. It is possibly for this reason that some psychologists fall into the trap of thinking that more testing will generate more certainty regarding capacity. Consequently, clinicians with a tendency to understate the limitations of psychometric scores in this context might do well to heed the warnings against the ‘construction of a capacimeter’ (Kapp & Mossman, 1996 4). It is argued that the most useful approach might be to focus on assessing the areas of cognitive functioning that EXPERT WITNESS JOURNAL

As mental capacity is intrinsically linked to the process of decision-making, psychological theories surrounding decision-making in non-clinical populations assume high relevance. As highlighted by Professor Graham Powell 7there is a tendency for us to hold an idealised view of the rationality of the average person.

Correspondingly, there is equally the likelihood of a psychologist jumping to the conclusion that an unwise decision reflects that part of the person that is irrational.

Many theories of reasoning and decision-making propose that we do not see the world directly but rather through a “lens” of ‘cues’ and selective information. Social judgement theory (Hovland & Sherif, 1980 8) highlights the tendency for individuals to begin from an “anchor” position in relation to a specific issue or question i.e. a preferred position reflecting their current attitudes and beliefs. Much decision-making would start from this point before any consideration of alternative views or new 66

SUMMER 2017

information. The further away the new information is from the person’s anchor position the increased likelihood there is of a ‘contrast effect’ whilst, conversely, ‘assimilation’ occurs when the new information is closer to the anchor. Thereafter, the involvement of the ‘ego’, or how much personal significance the issue has to the individual will play a key role in determining the individual’s flexibility to make changes to the anchor position in the process of reaching a decision. This particular theory has particularly relevance to our susceptibility to influence and persuasion. Meanwhile, alternatives, including the theory of reasoned action, emphasise ‘behavioural intention’ and the importance of the person’s attitude towards the expected outcome or result of the behaviour (rather than the decision itself). It also includes the person’s consideration of ‘subjective norms’ (including the influence other people might have on a person’s attitudes and behaviour).

Notably, the subtle, behavioural manifestations of executive impairment can often remain obscured by the structure and cues afforded by the assessment context. Consequently, some formal, psychometric assessments of executive functioning provide a very narrow and limited range of information regarding the individual’s ability to undertake activities within their day-to-day life. Despite the introduction of more ecologically valid tests this difficulty remains a significant one in relation to adequate assessment of executive functioning (Manchester et al, 2004 9).

The clinician’s dilemma of predicting how a client might behave in their day-to-day life is made no easier by the elusive and variable nature of specific dys-executive problems including thinking/doing dissociations, impulsivity and high levels of variability in functioning secondary to context, structure and levels of support. Moreover, the patient’s limited awareness of their condition might reduce their likelihood of seeking out support, incorporating advice from others or applying their knowledge to new or different scenarios. The latter point takes on greater significance in the context of ‘Boreham’s principles’, underlining the common sense view that most of us do not have the capacity to independently manage all aspects of our affairs (White v Fell, 1987 - unreported). However, the patient’s insight, realisation that they have a problem and their ability to seek advice and to understand the same are relevant to the question of capacity. Some psychological assessments of capacity, whilst generally compliant with the MCA guidance, might fail to address these ‘meta cognitive’ aspects of the patient’s condition.

The importance of these theories lies principally in dispelling the myth of dispassionate, mechanistic ideas of cognitive processing. The contribution of a number of complex, interactive cognitive and emotional variables to ‘socially normed’ judgements and decisions is often understated in capacity assessment. As social animals, we are continually striving to construct a view of ourselves that is consistent and reduces “dissonance” i.e. trying to minimise and modify conflictual or discrepant beliefs or views. As such, our views or beliefs are invariably ‘work in progress’ in a constant state of flux such that psychology assessments need to represent and describe this complexity in relation to the question in hand.

In view of these issues, many mental capacity assessments are therefore likely to need to include an informant, reference to broader functional/behavioural evidence and even multiple assessments. The need to include more detailed behavioural evidence in order to inform the assessment of capacity remains paramount and in the absence of this, an assessment is likely to prove parochial and fail to adequately represent vulnerability and incapacity secondary to changes in self-awareness, and reduced behavioural and emotional regulation.

Executive Functioning

Those capacities that enable a person to engage successfully in independent, purposive, self-serving behavior (Muriel Lezak) Theories of executive functioning have seen substantial growth and elaboration over the last 30 years, impacting significantly upon psychological assessment. This aspect of cognition often remains key to the assessment of mental capacity in view of its relevance to regulating thoughts, translating plans to action and learning from experience. However, the broad range of high level mental functions, including attentional control, organising, planning, multi-tasking and self-monitoring present unique challenges to clinicians both in terms of assessment and treatment.

Traumatic brain injury might present specific challenges in this respect in terms of the vulnerability of frontal brain structures following many types of closed head injury. Consequently, clinical presentations of patients with significant emotional and behavioural changes in the context of relatively unaffected intellect are not uncommon.

EXPERT WITNESS JOURNAL

The Vulnerability vs Incapacity conundrum

What we know matters but who we are matters more (Brene Brown) As previously noted, a dearth of information relating to the patient’s beliefs, values, social context, support networks and environment may offer a parochial or skewed picture of the patient’s decision making abilities and capacity. For sure, the four tests of capacity (mirrored in the language and format of associated documents such as the COP3 form) can often serve to collude with the notion of mental capacity as a disembodied, internal computational 67

SUMMER 2017

‘process’ devoid of history, discourse or social influence.

other clinical groups, when faced with complex and risky patients we are also likely to default to the familiar, including the security of the consulting room, the illusory certainty of psychometrics and possible overconfidence in the objectivity and wisdom of our own decisions. If we are to represent the complexity and diversity of our patients and fully understand the vagaries of human decision-making we will need to ensure that we are referencing every facet of the person’s history, environment and social context.

Moreover, psychologists could seek the position of ‘safe uncertainty’, or the ability to hold beliefs and knowledge with “authoritative doubt” – a balance of expertise and uncertainty (Mason, 1993 ). Correspondingly, our enquiry and exploration will be more likely to explore meaning than argue about facts, elevating curiosity and collaboration above certainty and ‘truth’. This approach would be entirely consistent with the imperative of explaining the complexity of the patient’s psychological functioning and decision making processes whilst upholding the ethos of empowerment and protecting the rights of vulnerable adults.

Judgements of when vulnerability becomes incapacity are multi-faceted and need to reference the patient’s ‘impairment of mind’ in its actual context.

For example, the effect of social isolation for many younger patients is often to limit opportunities for experiential learning and increase the likelihood of undetected exploitation and abuse at both the financial and personal level. Moreover, the tendency for isolated patients to use financial resources to facilitate and maintain friendships will often serve to compound vulnerability. In short, differentiating between unwise and incapacitous decisions will often need to provide greater insight into not only the individual’s ability to effectively process key information but also their ability to recognise and evaluate social influences and pressures. This observation has increased relevance in light of the insidious role of social media in shaping thinking and associated, inconspicuous opportunities for vulnerable adults to be strategically or opportunistically exploited or abused.

References 1, Select Committee on the Mental Capacity Act 2005. Report of Session 2013–14: Mental Capacity Act 2005: postlegislative scrutiny. London : The Stationery Office Limited

Psychological Evidence and the next 10 years….

One of the things that has happened to us in the 20th Century as a human race is how to learn certainty crumbles in your hand. We cannot any longer have a fixed view of anything – the table we’re sitting next to, the ground beneath our feet, the laws of science, are full of doubt now. (Salmon Rushdie)

2, Social Care Institute for Excellence (2009). Mental Capacity Act 2005 at a glance.

3, Audit tool for Mental Capacity Assessments: The British Psychological Society Practice Board & Social Care Institute for Excellence, 2010.

The clear implication of the House of Lords Review of the MCA is that the process of delivering on the MCA principles is likely to be complex and hard won.

Lawyers, clinicians and other individuals and agencies involved in work with vulnerable adults will need to take time to reflect on the implications of the legislation, the associated professional guidance for how we work, obstacles to achieving best practice and the responsibilities incumbent upon us all. The British Psychological Society Interim Guidance (2006 10) has set out a framework, including a ‘functional approach’ to capacity assessment, placing emphasis on the individual within their unique situation and history. This approach stems from the tradition of psychological formulation as a modus operandi, where the integration of multiple sources of information provides the basis for a ‘working model’ of the patient’s condition, in contrast to one focussed on illness, classification or diagnosis.

4, Kapp, M.B., & Mossman, D. (1996). Measuring decisional capacity: cautions on the construction of a “capacimeter”. Psychology, Public Policy & Law, 2(1): 73-95.

5, Newby, H., & Ryan-Morgan, Assessment of Mental Capacity. In, Practical Neuropsychological Rehabilitation in Acquired Brain Injury (2013), Newby, G., Coetzer, R., Daisley, A., & Weatherhead, S: Karnac; London.

6, Brooks, B.L, Iverson, G.L, Holdnack, J.A. (2009) Understanding and Using Multivariate Base Rates with the WAIS–IV/WMS–IV. Advanced Clinical Interpretation, 75102 7, Dr Graham Powell, Presentation at BPS Conference. The cognitive psychology of decision-making with respect to assessing mental capacity. 28th April 2015 8, Hovland, Carl I.; Sherif, Muzafer (1980). Social judgment: Assimilation and contrast effects in communication and attitude change. Westport: Greenwood.

9, Manchester, D., Priestley, N. & Jackson, H. (2004), The assessment of executive functions: coming out of the office.

Brain Injury, 18 (11): 1067-1081.

Moreover, psychology may well occupy a unique position in terms of its potential to reflectively apply models of how patients think, including idiosyncrasy, contradictions and bias, to its own thinking and decision making processes. However, like many of EXPERT WITNESS JOURNAL

10, BPS Interim Guidance on Assessing Capacity in Adults (2006). Available from www.bps.org.uk

68

SUMMER 2017

11, Towards Positions of Safe Uncertainty: Barry Mason: Human Systems: The Journal of Systemic Consultation and Management. Vol 4. 1993 189-200

Graham Rogers & Associates Limited Consultant Psychologists

Richard Maddicks Richard has worked in neuro-rehabilitation in both the NHS and independent sector since his doctoral qualification in 1996. 20 years experience in medico-legal work has seen him instructed as an expert neuropsychologist in many diverse and complex civil, criminal and family law cases.

However, his strong interest in rehabilitation and treatment has also underpinned an emphasis on therapeutic work with patients following trauma, mild brain injury and other complex and severe neuropsychological presentations.

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

Experience and Expertise in Psychological Assessment Experience at The Central Criminal Court, providing reports and live evidence.

Qualified as a Psychologist for over 25 years Former Head of Department Experienced within both the NHS & Local Government

Richard formed Psychology Chartered over 10 years ago and it is now an established independent provider with a reputation for its accessibility, efficiency and clinical expertise.

Experienced in working with offenders within the community Contact: Mob: 07952 170 627 Email: info@grahamrogers.org.uk suzi.v.brown@gmail.com Web: www.grahamrogers.org.uk

PsychologyChartered www.psychologychartered.co.uk Twitter: @PsychologyCLtd Facebook: Search "Psychology chartered"

Available Nationwide

Psychology Chartered LinkedIn Page

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

• Post-concussion syndrome

• Stroke

• Anoxia

• Epilepsy

• Dementia

• Alcohol and drug abuse

• Neuropsychiatric conditions

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

Dr Monaci has completed the Cardiff University Bond Solon Expert Witness Certificates (Civil and Criminal Law).

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

69

SUMMER 2017

7 Tips for Finding the Right Psychiatric Expert Dr Imran Waheed FRCPsych In R v Turner (1975) 60 Cr. App. R. 80, Lawton LJ stated: “…the fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves; there is a danger that they think it does…Jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from any mental illness are likely to react to the stresses and strains of life.”

1. Do you need an expert?

If a bench or jury is going to be able to decide upon the case by listening to or viewing the evidence and bringing to bear their own senses, knowledge and experience, then no expert is needed.

In my experience, it can be useful to have an initial conversation with the instructing professional to establish whether expert psychiatric evidence is likely to assist the Court. Of course, if it is unlikely to be helpful, valuable time and money can be saved.

The psychiatric expert witness is a witness who provides to the court a statement of opinion on any admissible matter calling for expertise by the witness and is qualified to give such an opinion; “An expert’s opinion is admissible to furnish the court with the scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary.” (R v Turner [1975] 1 All ER 70)

2. When is an expert an expert?

The psychiatrist claiming expertise must have acquired by study or experience sufficient knowledge of the relevant field to render their opinion of value.

It is very important that experts understand the dangers of taking instructions outside of an expert’s direct field of expertise. In Pool v GMC [2014] EWHC 3791 (Admin) the High Court held that doctors that hold themselves out to be experts in a particular field must ensure that they are sufficiently expert enough. Dr Pool had accepted instructions as an expert witness in proceedings before the Health

When instructing a psychiatric expert, it may be helpful to consider the following 7 tips:

EXPERT WITNESS JOURNAL

70

SUMMER 2017

It is important for instructing professionals to be aware that there are significant pressures on NHS hospital beds and that there can be delays in identifying an available and appropriate bed.

Professions Council in relation to the fitness to practise of a paramedic with a history of post traumatic stress disorder and a personality disorder. The paramedic objected to the evidence on the grounds that Dr Pool was not an expert. The High Court found that the Fitness to Practise Panel was not wrong in concluding that Dr Pool was not on the Specialist Register in the category of general psychiatry, had not completed any higher professional training and that “his qualifications and experience did not equip him to be an expert”.

7. Can the expert deliver?

It is good practice to ensure agreement of deadlines and fees with the expert to avoid misunderstandings or problems at a later stage.

It is essential that the instructing professional confirms that the psychiatrist accepting instructions has enough time to do the work and to do it thoroughly and to a good standard. Many experts have busy clinical commitments in addition to their medico-legal practice; it is therefore important that deadlines and expectations are clear e.g. if there is a need to attend Court, the expert may need to rearrange clinical commitments.

3. Is the expert independent?

The psychiatrist must be able to provide impartial, unbiased, objective evidence on the matters within their field of expertise i.e. the expert is independent of the parties to the proceedings.

This can be of particular relevance when an expert report is sought from a treating psychiatrist i.e. a psychiatrist who is treating the individual for whom a report is being sought. On some occasions, the preparation of an expert report by the treating psychiatrist can have an adverse impact on the therapeutic relationship with the individual, particularly where the individual disagrees with the conclusions of the psychiatrist.

The author Dr Imran Waheed FRCPsych is a NHS Consultant Psychiatrist and Clinical Director and the Founder of www.psychiatricreport.com, one of the UK’s leading providers of expert psychiatric and psychological reports.

Also, while the prior acquaintance with the individual can be useful, the treating psychiatrist may not always have the necessary expertise in relation to medico-legal report preparation.

Dr Duncan Dymond

4. Is the evidence reliable?

As with other expert evidence, there should be a reliable scientific basis for the psychiatric evidence or it must be part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience.

MD FRCP FACC FESC

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

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.

5. Are the findings/recommendations clear?

While many psychiatrists are excellent clinicians with extensive knowledge and experience, this doesn’t always translate into a polished finished product.

Dr Dymond currently completes 1-2 medicolegal reports per week, for personal injury and medical negligence, with roughly a 60/40% split claimant/defendant.

It is therefore essential that the instructed expert psychiatrist is capable of conveying their findings and conclusions in a way that is easily understood by the layperson; reports must be balanced, robust and logical.

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.

6. Are the recommendations practical?

It is ideal if the instructed psychiatrist is aware of local services so that reports that make recommendations are of practical use. If the author is not the treatment provider, liaison with local services is vital to assure authorisation of a bed for hospital orders or other treatment provision in a community setting is available prior to making any recommendation.

EXPERT WITNESS JOURNAL

T: 0207 079 4260 E: medicolegal@harleycardiology.co secretary@drduncandymond.com W: www.drduncandymond.com 110 Harley Street, London, W1G 7JG

71

SUMMER 2017

Chartered Surveyors in Property & Construction – Caring for Your Needs Daniel Connal is a long established construction consultancy with a wide range of specialist skills.

We provide a multi-disciplinary service as Chartered Surveyors in the Property & Construction sectors.

We support our clients’ needs whether they are undertaking construction projects or investing in or occupying property with Project Management, Quantity Surveying, Building Surveying and Health & Safety Services.

We have always taken pride in providing a cost-effective and personal service with flexibility to meet our clients’ needs.

Our aim is to add real value to our clients’ construction projects and property assets.

We are happy to provide bespoke services to meet our client’s needs and develop innovative solutions to particular client requirements.

Those who have benefited from our services cover both the public and private sectors. They include many industry leaders and household names, local authorities, health trusts, housing associations, education providers as well as small companies and individuals. Their common characteristic being a discerning requirement for a personal, conscientious and cost effective service delivered by professionals that care for them, that they know they can rely upon.

Our Expertise Expert Opinion

Expert Reports

Single Joint Expert Reports

Court Appearance

Negotiation

Mediation

Arbitration

Adjudication

Our Specialist Experience Construction Disputes

Professional Negligence

Contact us London Monmouth House 42 Artillery Lane London E1 7LS

Colchester 780, The Crescent Colchester Business Park Colchester Essex CO4 9YQ

Norwich The Glasshouse King’s Lane Norwich, Norfolk NR1 3PS

t: 0207 375 2535 f: 0207 377 2650 e: london@danielconnal.co.uk

t: 01206 751284 f: 01206 841657 e: colchester@danielconnal.co.uk

t: 01603 629421 f: 01603 620181 e: norwich@danielconnal.co.uk

Contact: Simon Jacklin

Contact: Alastair Clark Jonathan Dennis

Contact: Robert Dale

Chronic Traumatic Encephalopathy: A Medicolegal Perspective

by Professor Upendra Mohan Chowdhary Subsequently as interest developed and more and more such cases came to be known, Millspaugh (9) wrote an article which was publish in the US Navy Medical Bulletin in 1937 where he coined the words ‘dementia pugilistica’. Millspaugh also studied the brain of some of these patients and differentiated these from other causes of neuro-degenerative disease such as Alzheimer’s Disease (AD), Parkinson’s Disease (PD) etc. Subsequently more and more attention came to be focused on athletes of other sports and even other professions where repeated head injury had happened ranging from minor head injury to major head injury. The association between athletes in a variety of sports, where close contact between athletes was a regular occurrence, were studied and this included players in American football, professional wrestling, professional ice hockey (both in Canadian and USA leagues), soccer, cases of repeated physical abuse, repeated epileptic seizures and head banging (4). During the recent

Introduction For several years now there has been intense media attention regarding athletes in contact sports developing, some years after their retirement, symptoms and signs of what can be loosely defined as dementia (1,4,12). A Hollywood film, entitled “Concussion” was made starring Will Smith in 1995 (8). This subject of athletes, in certain sports, developing delayed post retirement dementia has been known since 1928 when Martland in JAMA published an article which was entitled ‘Punch drunk’ (6). This was related to boxers exhibiting memory problem, behaviour and/or motor abnormalities and these symptoms had appeared several years after they had retired from their amateur or boxing careers. This was known to the relatives of the boxers, to the sport writers and the boxing fraternity and was referred to as ‘punch drunk’. Martland (6) was the first to put it into medical literature.

EXPERT WITNESS JOURNAL

73

SUMMER 2017

mortem and neuropathological examination of their brains in Boston. It was suggested that the estimated life-time prevalence rate is at least 3.7%. This is a somewhat conservative estimate but still signifies enormous public health risk for a person who suffered repetitive mild trauma especially in the contact sports noted above (4). It is also to be noted that all over the world the various types of contact sports are played by a very large number of athletes and even if ultimately a small percentage of them develop chronic traumatic encephalopathy the public health implications are frightening.

years the media has publicised these cases especially the cases of famous professional athletes who had developed this delayed neuro degenerative disease.

In modern times this came to be known as chronic traumatic encephalopathy (CTE). This description was first used by Miller et al. (11).

Most of the attention, both in the literature and in the media, was related to repetitive minor head injury causing concussion but in medical literature cases started to be published were one episode of moderately severe or severe injury, most of which were accident related, had also resulted in chronic traumatic encephalopathy (CTE) (3). One publication had tried to separate these two types of aetiology as acute and chronic traumatic encephalopathies (7). As the scientific and media related attention has mostly been focused on repetitive minor head injury leading to delayed CTE and as most of the publication and research has been directed toward this, I am only going to discuss this type of CTE related to repetitive minor head trauma, mostly in sports, where physical contact is common place but also related to one or two other aetiologies such as in Armed Forces personnel (10) both during training and during combat where they suffer from minor head injury or even moderate head injury mostly related to explosion of ammunition or of improvised explosive devices.

Symptoms and clinical presentation One of the important point to remember is that the chronic traumatic encephalopathy develops several to even 30-40 years after the athlete has retired from their career and hence they are in their 50’s or 60’s and a certain percentage of the population at around the same age group, but usually somewhat later, develops naturally occurring degenerative brain disease such as Alzheimer’s Disease, Parkinson’s Disease, amyotrophic lateral sclerosis etc. The clinical symptoms may overlap but various associated and circumstantial factors will have to be taken in to account to separate the CTE symptomatology from these naturally occurring neuro degenerative diseases (1). Two important factors have to be taken into account here, viz. (i) the definite history of repeated minor head injury during the younger years (ii) somewhat early onset of the symptoms of neuro degeneration related to the brain.

Epidemiology Most of the scientific studies and even media attention has been in the United States and is related to players in two of the most popular sports in the USA, which are American football and ice hockey. It is also worthy of noting that soccer has been also mentioned frequently in the literature. It is now apparent that CTE is now a worldwide disease and affects the athletes in the sports mentioned above but also in combat related injuries to Armed Forces personnel (3, 10) and even in abuse cases where there has been repeated trauma to the head. It is also worth noting that three of the players who played for England in the 1966 World Cup winning team have, by 2016, developed all these symptoms and signs of chronic traumatic encephalopathy. This means that out of the 11 players 3 have been affected. This is a very high percentage of professional soccer players being diagnosed as having chronic traumatic encephalopathy on clinical grounds. The surmise is that footballers who played regularly at amateur level or professional level in the 1960s and even in 1970s played with leather footballs that used to get very heavy when wet and it is postulated that the repeated heading of these balls produced damage to their brains, the clinical picture of which appeared as long as 40 to 50 years later.

CTE is defined as progressive neuro degenerative syndrome caused by single, episodic or usually repetitive blunt force impact to the head and transfer of acceleration – deceleration and rotational force to the brain (1).

The latency period for most of the contact sports are at least 6-12 years after the athlete has retired from their playing era. In many such cases, especially boxing, the latency period could be double or even triple the estimate given above.

The symptoms usually are noted firstly by close relatives and friends of such patients and the difficulties are in personal interactions, business, behavioural and financial affair issues which may then progress to depression, alcohol or substance abuse or is likely to lead to progressive disorganisation of lifestyle. The symptoms of CTE have been divided into 4 broad categories related to these functions – behaviour, memory related functions, mood and motor functions (1). The behavioural changes in addition to what has been noted already could be anger related problems, aggressive and/or impulsive behaviour, impaired judgement which is associated with vastly increased rate of suicides in this group of patients (4). Subsequently short-term memory loss and

American professional football players who died between February 2009 and June 2010 totalled 321 and the brain of 12 of these underwent detailed post EXPERT WITNESS JOURNAL

74

SUMMER 2017

learning difficulties arise and this may be associated with motor difficulties later on. This sequence of onset of symptoms in CTE differentiates it from Alzheimer’s Disease where the memory problem starts first.

confirmed as it is not possible to do the genetic studies in every person who has multiple minor head injuries. One of the emerging genetic defects is related to ApoE4 allele (1).

Diagnosis of CTE The clinical diagnosis of CTE is based on circumstantial evidence, onset of behaviour related problems as noted above in people who have history of repeated minor head injury in their younger days and this should give rise to strong suspicion of CTE. Unfortunately there are no well-established diagnostic criteria that have been accepted in the neurological world which will firmly diagnose CTE in a living patient. Standard MRI Scan may show fenestrated Cavum Pellucidum (5). There are some promising developments and it is likely that in the next 10 years or so a combination of very specialised MRI scanning and presence of biochemical markers resulting from the cerebral degeneration in CTE will become available to the extent that there can be confirmatory diagnosis of CTE. The specific protocol of diffusion tensor MRI scan and specialised functional MRI scanning is showing good potential to diagnose the CTE and differentiate it from the other neurodegenerative disease such as Alzheimer’s Disease and Parkinson’s Disease. But there are problems in these investigations which are that the neuroscientific community has not agreed that what are specific features in these specialised MRI scans to confidently diagnose CTE and as yet the biomarkers are also not that discriminatory between CTE and other types of neurodegenerative diseases.

One question that is frequently put to the neurological experts is – “Will nearly all football players develop CTE?” (12) The answer is that in strict neuroscientific terms we do not know the situation here but, the media reports have been somewhat frightening as one of them had stated that up to 96% of national league players in the USA and 79% of all football players are likely to develop CTE. The consensus of opinion, as noted by McKee and colleagues (7), has stated that there is not enough evidence in the literature to give a definitive answer to this question.

On the other hand it has been emphasised in almost every article published on this subject that as (a) there is a delayed period of 10 to 20 years or even longer after the athlete has retired and (b) that the true incidence will only become evident once the in vivo diagnostic criterias have been established and agreed.

As this will take many years it is much better to concentrate on prevention. There has been a begrudging acceptance of CTE by the professional sports associations in the USA, which came about after several litigations, (8) against the American football and North American professional ice hockey associations and there have been some changes to the rules and stricter head to head contact rules in these sports.

There also has been some biomedical research going on regarding estimating the force applied in head contact by putting biosensors in the helmet and improving the design of the helmet. There has been pressure, in the United Kingdom, put on the boxing bodies, especially by the British Medical Association and by group of neurosurgeons and neuroscientists that professional boxing should be radically modified in various ways to reduce the risk of the boxers developing CTE in later life or even abolished. But, it seems that this advice is having very slow effect in the prevention aspects of injury during boxing.

Hence, the diagnosis is mostly based on clinical factors which are earlier onset of behavioural changes in persons who had defined history of repeated minor head injury in their younger days and who on MRI scan do not show typical pictures of Alzheimer’s Disease. There are differing patterns of tau related deposition in CTE and in Alzheimer’s Disease which are well known for Alzheimer’s Disease as typical findings and hence once in such patients Alzheimer’s Disease has been excluded then the diagnosis of CTE is very much more likely.

There has been some debate whether not only repeated concussion but also sub concussion type repeated head and brain injuries are responsible for development of CTE. Concussion is defined as a temporary change to mostly the cognitive and behaviour pattern in a person who has sustained minor head injury. The symptoms are confusion, disorientation, temporary cognitive deficit, some temporary behaviour changes, dizziness, headache etc.

(11). The definition of concussion does not include mandatory loss of consciousness but most of the patients suffering concussions have at least transient loss of consciousness. Sub-concussion has been defined as lesser head injury where the symptoms were even more transient and the recovery was faster.

Discussion There is a consensus of opinion developing that CTE is a progressive disease (2) and the patient would continue to deteriorate and go through the four categories of neurological and psychological deterioration as noted already in this article. There no specific treatment for patients with CTE except for general supportive measures and treatment of the main disabling symptoms but they are not very effective and progressive deterioration is much more likely.

There is a possible genetic predisposition in the majority of these patients but again this has not been EXPERT WITNESS JOURNAL

75

SUMMER 2017

needed from such experts but they have to study in great detail the literature, especially the current literature as there are constant advances in the knowledge related to CTE.

Likely future development and research The basic neuropathological research has been trying to get as much detailed histological work done on a large number of donated brains from such athletes after they have been clinically diagnosed to have CTE.

As most of the cases of CTE happens 10-15 years earlier than the mean age for Alzheimer’s Disease or Parkinson’s Disease, if on legal basis CTE is confirmed to have resulted from repeated concussive minor head injury some 15-20 years earlier and as CTE is a progressive disease the monetary compensation is likely to be very substantial. On the other hand as has been repeatedly mentioned in this article the establishment of diagnosis of CTE is based mostly on circumstantial evidence, which has been discussed already in this article.

There is also effort being made to get some in vivo diagnostic criteria formulated and then get it approved in an international meeting. The last consensus CTE Meeting was in 2012 where some directions were given regarding future research. There is also research being done for estimation of biomarkers, both as can be detected by specialised MRI Scan and possibly also in blood. It is likely that the special protocol based MRI scan where individual chemical molecules can be scanned and functional MRI scan where in the earliest stages of behavioural changes depression and aggression in such athletes could be measured and defined and this may lead to establishment of criteria for MRI based diagnosis.

References 1. Bailes JE, Turner RC, Lucke-Wold BP et al.: (2015) Chronic Traumatic Encephalopathy: Is it Real? Cl9inical Neurosurgery. 62(1), 2015, p15-24.

2. Davis GA, Castellani RJ, McCrory. Neurodegeneration and sport. Neurosurgery. 76 (6), 2015, p643-656.

Medicolegal perspective One of the reasons that I have decided to publish this article is to make the legal profession aware of this clinical syndrome of CTE. The CTE appears many years, even up to 20-30 years, after repeated mild head injuries, whether that be just concussion or subconcussion and that is recognised to be a different group of neuro degenerative diseases than well-known conditions such as Parkinson’s Disease, Alzheimer’s Disease and amyotrophic lateral sclerosis.

3. DeKosky ST, Blennowk, Ikonomovic MD et al. Acute and Chronic Traumatic Encephalopathies: Pathogenesis and Biomarkers. Nature review: Neurology. Vol 9, 2013, p192200.

4. Gavett BE, Stein RA et al. CTE: A Potential Late Effect of Sports. Concussive and subconcussive. Head Trauma Clin Sports Medicine. Jan 2011: 20 (1), p179- xi.

5. Juneyoung Yi, Padalino D et al. Current Sports Medicine Reports. Chronic Traumatic Enceph – 2013, 12(1), p28-32.

6. Martland HS. Punch Drunk. JAMA. Vol 91, 1928, p11031107.

As literally millions of concussions and subconcussions occur not only in sports but in other circumstances (1.6 to 3.8 million sports-related concussions occur annually in the United States) (7) and as there has been enormous media attention on this subject it is likely that there will be legal claims that CTE has developed in a particular person due to the repeated concussions sustained during sports where personal contact is part of the game and that (a) this risk was not made known to that person and (b) preventive measures were not taken. Based on such premise there may be a claim made against a professional body, a school, a sports club, even colleges and universities and the Ministry of Defence in relation to combat related repetitive head injury. The subject from a medicolegal point of view is full of mine fields.

This is mostly due to the difficulty in diagnosing CTE in vivo (in a living person) with certainty. The lack of definitive in vivo diagnosis of CTE has not been established. There are various circumstantial matters that would point strongly to CTE in contrast to other naturally occurring neuro degenerative diseases.

7. McKee AC, Cantu RC et al. CTE in athletes: Progressive Taupathy following Repetitive Head Injury. J Neuropath Exp Neurol. 68(7): 2009, p709-735 8. Miller DC AANS Neurosurgeon. Point: Chronic Traumatic Encephalopathy: A Real Disease, but not a new one.

Vol 25(3), 2016 9. Millspaugh JA. Dementia Pugilistica. US Navy Bulletin.

Vol. 35, 1937, p297-303.

10. Omalu B, Hammers JL, Bailes J et al. Chronic Traumatic Encephalopathy in an Iraqi war veteran with Posttraumatic Stress Disorder who committed suicide.

Neurosurgical Focus, vol 31 (5), p E3.

11. Saigal R, Berger MS. The Long-term Effects of Repetitive Mild Head Injuries in Sports. Neurosurgery. Vol 75(4), Supplement October 2014, pS149-s155.

12. Vin Shen Ban. Madden SJ, Bailes JE et al. The science and questions surrounding chronic traumatic encephalopathy. Neurosurgical Focus. 40 (4), E15, 2016.

Author: Prof U M Chowdhary MS, FRCS (Glas & Edin) Consultant Neurosurgeon.

E-Mail: upendrachowdhary@yahoo.com.

The other problem is that in-depth and comprehensive knowledge about this subject may be scarce as not only a very good knowledge of neurodegeneration is EXPERT WITNESS JOURNAL

76

SUMMER 2017

EXPERT WITNESS JOURNAL

77

SUMMER 2017

Disability and its Effects are not Always Obvious Eddie Lamptey, Expert Witness on Disability Accommodation for Cowan Architects, argues that we must not define people by their abilities or disabilities but rather help them to normalise their lives through sophisticated adaptations in their living environment. . by getting inside the soul of the man and this is an important part of our remit.

Some people don’t realise that impairments such as migraines, dyslexia, asthma and back pain can count as a disability. Certainly, under the rather dry definition of the Equality Act 2010 this is the case if the adverse effect of these conditions on the individual is substantial and long-term. The key thing is not the impairment but its effect.

As far as accommodating disability in the strict housing sense, we have Part M of the Building Regulations to guide us; a tick box exercise that any builder can follow. BUT to really provide a solution that’s helpful, a housing expert must really look below the surface with an informed eye. Even someone who considers themselves articulate on the subject might be surprised at the extent that their view of disability short-serves them. From the mother with a pushchair trying to get through a doorway at one end of the spectrum to the immobile tetraplegic totally at the mercy of a carer at the other, and everything in between, ‘normal’ levels of accessibility is compromised.

As an Expert Witness for accommodation I have to look beyond what is in front of my eyes and use empathy and understanding to really see the ramifications of in individual’s disability. I know of a man in his late 50s who was left a paraplegic after a road traffic accident. All the experts, such as the Occupational Therapist, the Accommodation Expert and the Carer, where making recommendations for therapy rooms and facilities until the psychologist spoke out. “This is total nonsense! What this man needs is a large, insulated garage with lots of space and room for a sofa or two so that he can have all his mates round to natter and tinker with cars. That’s what he needs”.

The idea of what’s ‘normal’ is central to the debate.

Going back to the Equality Act 2010, it says that “disability has a long-term adverse effect on a person’s ability to carry out normal day-to-day activities”. This means activities that people do on a regular or daily basis, such as reading, writing, using the telephone, having a conversation and travelling by public transport. One might not think that the loss of

Of course, the psychiatrist was right. Or part-right as making the most of the man’s living space has to go beyond a garage, but he had addressed the nub of it EXPERT WITNESS JOURNAL

78

SUMMER 2017

with more severe injuries may, in addition, experience complex physical and sensory difficulties.

hearing would have an impact at home, but loss of balance often goes hand in hand with defects to the hearing and the need for a single level dwelling may become necessary to avoid the hazards of staircases.

For younger people, it’s better to have separate spaces for separate function, even if they’re smaller so that the child knows that this room is for sleeping, this one is for play and this one is for therapy. For older patients, a quiet room is also important as temper thresholds are lower and personal space becomes more important - for everybody.

As specialists in adapting living spaces to meet the individual needs of a client or in acting as Expert Witnesses in High Court Cases, Cowan Architects often finds solutions that are far from obvious that need us to ‘get under the skin’ of the syndrome or disability in question. Indeed, every client carries and handles their individual disability differently. We always want to design a home that doesn’t shout out ‘disability’ if we can avoid it.

Attention to clever design should be given externally as well as internally. The importance of outdoor space, such as gardens, cannot be over-estimated as its sensory stimulation has important therapy effects, being good for wellbeing and rehabilitation.

Mobility

Accommodation also needs to be future-proofed with a design that can provide life-time flexibility incorporating aspects such as knock-out walls to allow for the future installation of hoist systems, sufficient storage for equipment such as wheelchairs and generous rooms and circulation to allow for easy use by wheelchairs. If this is done well, the interior shouts ‘contemporary’ instead of ‘disabled’.

The rise in diabetes, sepsis and other conditions can lead to severe limitations in mobility from limb loss where wheelchair use becomes commonplace with 7,000 new cases annually from diabetes in the UK alone.

Key elements to consider are the kitchens, bathrooms, circulation and access areas (particularly for wheelchairs), specific equipment, environmental controls, materials and finishes. Living areas such as the kitchen, dining area and toilets need to be designed with helpful features such as lower components, rise and fall worktops, quick-cool hobs, robust knockproof finishes and moveable components.

In the garden, ramping, non-slip surfaces, wide paths with pointing on the diagonal for smoother, more comfortable rides in the for wheelchairs and raised beds for easier interaction, can all make a positive difference. If the garden is visible from the bedroom and living areas, its benefits will be felt inside as well as out.

Above, A contemporary adaptation for the Sail Loft at Calamansac, Cornwall It is also important to involve the user in the design where possible such as wheelchair accessible gardens, colour schemes and finishes.

Those needing a secure environment can also enjoy outside space too with the use of circular routes which run in and out of a courtyard with benches for ‘stop and stare’ time.

To appreciate the breadth and depth of understanding needed in each case, it may be worth looking at some of environments and disabilities that require specialist accommodation needs.

Military Any member of the Armed Forces is at risk of sustaining a variety of serious injuries both during training and in the field including brain injury, chest injury, spinal injury, loss of sight, single or multiple loss of limbs, burns /scalds and cold injury. Non Freezing Cold Injury (NFCI), or sometimes known as “Trench Foot” or Cold Weather Injury, can occur to feet and hands and is the most common form of military injury suffered on military exercise in the UK. The residual effects of the injury can last for many months and in the worst cases be permanent leading to increased sensitivity to cold and changes in temperature. This might be mitigated by added insulation around the home to minimize temperature

Brain Injury At any one time about 1,000,000 people in the UK are living with the results of a head injury and the effects may be devastating. Stroke can induce similar effects. Bones can mend and scars can heal but a brain injury stays with you for life and impacts on everything you think, feel and do, affecting not only the injured person, but also family, friends and work colleagues. The problems that arise do not always depend on the severity of the injury. People with an apparently minor injury may experience difficulties with memory, concentration, communication, problem solving, mood and personality changes, as well as fatigue and intolerance to their environment. People EXPERT WITNESS JOURNAL

79

SUMMER 2017

fluctuations. Using sophisticated techniques to improve the propertyâ&#x20AC;&#x2122;s insulation levels, such as Passivhaus Technology, may help in such situations.

ronment, including different textured surfaces and contrasting colours surfaces to help orientation. Rubber matting was also used to prevent the grass area from becoming muddy in the winter months while also providing a soft surface when the ground became hard both in the summer or winter. The pathways were also laid using a permeable, resin-bound surfacing to provide a non-slip overlay that allowed water to drain through, preventing any build-up of ice in the winter. The provision of off-road carparking bays mitigated traffic problems.

Post Traumatic Stress Itâ&#x20AC;&#x2122;s not just physical disability that needs to be accommodated as there are plenty of design techniques that can help combat the mental stresses of life such as PTSD. Such individuals are over-sensitised and they react very differently to visual, environmental and noise stimuli, particularly those in the military. Living areas that are open-plan with limited textures, colour palettes and â&#x20AC;&#x2DC;hiddenâ&#x20AC;&#x2122; areas will provide a more calming influence as will elements of sound attenuation to lessen loud noises. Sensory outdoor spaces with water features and fragrant plants are also calming.

Disability comes in many forms but help should be enabling and not defining. Understanding its effect on an individual and the application of clever solutions goes a long way to supporting and empowering those facing greater challenges than some of us to live the â&#x20AC;&#x2DC;normalâ&#x20AC;&#x2122; life that everyone deserves.

Birth Trauma Problems during and around childbirth can lead to the babyâ&#x20AC;&#x2122;s brain being starved of oxygen resulting in both physical and mental disability. Cerebral Palsy is the name given to a group of lifelong conditions that affect movement and co-ordination, largely as a result of such a problem and occurs in 2.1 per 1,000 live births. The symptoms are not usually obvious in the first two or three years of a childâ&#x20AC;&#x2122;s life and their severity can vary significantly. Some people only have minor problems while others may be severely disabled so that extensive adaptations to the family home are needed or the relocation to a more suitable home.

Eddie Lamptey Eddie Lamptey has more than 15 yearsâ&#x20AC;&#x2122; general practice experience and has worked with a number of world-renowned architects (including Sir Norman Foster) both in the UK and Scandinavia.

His work for inclusive design has covered the design of Canary Wharf tube station, which was part of the wider Jubilee Line extension. More recently Eddie has been involved with the delivery of concept ideas for improving environments for people with Huntingtonâ&#x20AC;&#x2122;s disease at the Royal Hospital for Neuro-disability in Putney.

Weâ&#x20AC;&#x2122;ve worked with a family whose son has dystonic quadriplegic cerebral palsy and they needed to find a property that could be suitably adapted to provide for their sonâ&#x20AC;&#x2122;s current and future needs, while also accommodating the separate needs of their other son and two young daughters. Our aim was to design living spaces that integrated the child with the family and maintain the family unit to everyoneâ&#x20AC;&#x2122;s benefit.

4$,+% '#,3* .)+.''1+.)

4+,&+.) '15+%'2 .)+.''1+.) %%40#3+/.#, '#,3* #.& #('38 1#%3+3+/.'1 #.& #1$/. /./7+&' .5'23+)#3+/.2 #2 #(' ')+23'1'& .)+.''1 1#+.#)' #3'1 '.31#, '#3+.) #+.6#3'1 .)1'22 #.& ,//&+.) %#,&+.) #.& 41.2 /1'.2+% *#13'1'& .)+.''1 .5'23+)#3+/.2 '0/132 /413 33'.&#.%'2

A large new kitchen now acts as the family hub with a garden room connecting the old and the new with easy wheelchair access and space where the son can easily mix with the rest of the family without restriction. This opens out onto decking that uses slip-resistant boarding, with a long-lasting surface for disabled and abled-bodied persons alike.

#22'8 ,#%' ,3*#- /.&/. " ! ',

#7

/$+,'

' -#+, 2#6#,2* $3%/..'%3 %/'$ 666 2#6#,2* %/-

Loss of Vision A total or partial loss of sight can lead to all manner of complications in the home but there are a number of adaptations that help the adjustment. As an example, we were approached by a family with a visually impaired son to undertake remedial, redecoration and external works on a three-storey Victorian property to create a more suitable environment for him. A scheme of re-decoration using contrasting surfaces and colours, while minimising trip hazards and sharp corners, was implemented. The outside was also completely re-designed to provide a safe, trip-free enviEXPERT WITNESS JOURNAL

80

SUMMER 2017

The Dependable Expert Witness Five Essential Factors to Consider

by Martin Burns - Head of ADR Research and Development (RICS) People who act as expert witnesses perform a crucial role in judicial proceedings in the UK. Judges and other tribunals depend on their opinions to understand technical evidence before them, and thus make informed decisions. However, in recent years the role of expert witness has become more onerous and the demands of instructing parties have increased.

crucial factor in determining who is to be an expert, and credibility of an expert’s stated expertise will inevitably be tested. Anyone who takes instructions to act as an expert will know that his/her expertise will be examined in detail by opposition lawyers. An expert’s opinion will nearly always be balanced against the opinion of experts instructed by opposing parties.

It follows that an expert’s professional qualifications and experience must stack up.

To an extent, this can be traced back to the 2011 Supreme Court decision in Jones v Kaney, which abolished immunity in negligence for expert witnesses.

One consequence of this decision has been greater care taken by instructing parties to ensure they appoint suitably qualified and able expert winess.

2. Procedure Acting as an expert witness gives rise to obligations that go way beyond giving advice on a specialist subject. An expert witness must be able demonstrate a genuine understanding of the procedural requirements for giving evidence in court and, for example, s/he must be able to meet deadlines and produce written reports that comply with requirements set out in the Civil Procedure Rules.

As an institution, which is regulated by a Royal Charter, a primary duty of RICS is to maintain quality and ensure chartered surveyors discharge their professional duties to the highest standards. In recent years, RICS has developed a new qualification and status for expert witnesses in property and the built environment. What follows is a brief outline of five factors which RICS has focussed on when developing the Expert Witness Accreditation Service (EWAS).

Experts must be dependable in the witness box. They should understand the procedures for giving evidence under examination and cross-examination.

Increasingly, they must also be able to demonstrate skills in giving oral testimony in “hot-tubbing” situations. This is when experts for opposing parties give evidence in each other's presence and in front of the

1. Credibility Expertise in the relevant subject matter remains a EXPERT WITNESS JOURNAL

81

SUMMER 2017

judge, who puts the same questions to each expert in turn, effectively acting as chair of a debate between the experts.

Reports should be structured and in language that can be readily understood by the judge. Opinions, whether expressed in writing or orally should comply with procedural requirements and, where required by the Civil Procedure Rules, include formal declarations.

3. Impartiality An expertâ&#x20AC;&#x2122;s evidence should express an independent view that is both objective and, if necessary, critical of arguments put forward by his or her instructing party.

The focus on professionalism goes to all aspect of an expertâ&#x20AC;&#x2122;s role and includes, for example, how to dress when attending and giving evidence in court.

Before accepting instructions, an expert witness must make appropriate checks to ensure s/he is not precluded from acting because of a conflict of interest. It is imperative that an expert witness understands what a conflict of interest is, and also appreciates the legal tests for bias.

5. Training/Accreditation There appears to be increasing requirements by instructing parties for experts to have immense subject matter expertise, and demonstrate they have undertaken formal expert witness training.

It is imperative that training is obtained from a recognised training provider. The training should include a significant degree of assessment that tests the extent to which a candidate can discharge the role of expert witness to a standard expected by instructing parties.

An expert witness, and those who instruct him/her, should recognise that the primary duty of an expert witness is always to the court/tribunal. In other words, an expertâ&#x20AC;&#x2122;s overriding duty is to be truthful and honest in what s/he tells the judge or other tribunal, even if it damages the case for the party who is paying his/her fees.

Finally, acting as an expert witness can be a challenging and rewarding role, but it must not be taken lightly. A party who instructs an expert witness is likely to expect value for money and require an expert who is not only qualified in his/her specialist subject area, but also understands how to discharge his/her legal duties as an expert. Expert witnesses should be trained and assessed and able to demonstrate their ability to give evidence that matches the value, complexity and significance of the relevant case.

4. Professionalism Whilst it may seem like stating the obvious, the fact is expert evidence can be undermined if the expertâ&#x20AC;&#x2122;s approach to preparing and writing a report is sloppy, or if oral testimony is not argued effectively under examination.

## '' +

&+ - "+ /" + '" '

#' "+ (+ #'!+ % +

+ "+' + - +# ", #+ '+ ' ' , +" ' #

G G G G G G G G G G

" "'/+, * ' + +#*", /#+ * $ , +)+ # ' #+ +" "'# ' +#*", /#

'" + " "' # " ' + , * ' #+ "+ " ' +' . * # "/+ *" # + , + + ' ' # '" # ' , +, * ' #

+" "'#

"'/+- + # *' #

# + " # '

G G G G G G G G G G G G

* #+ + ' * #+ +

' '+" , -+ , + + ' '

# +" - + , + + ' ' " "'/+, * ' + "+ "' #+ + " ' + , * ' #+ "+ " ' +' . * # "/+ *" # + , + . "'+- ' ## '" # ' , +, * ' #

* ' #+ "+ *"'+ + ' *# ##+" ' +

#+ + , *#'" + + " + /

EXPERT WITNESS JOURNAL

82

SUMMER 2017

RICS Expert Witness Training This training will equip experts with the knowledge, practical skills and confidence to prepare for and conduct an expert meeting effectively.

What will you learn?

•

The benefits of using an agreed agenda

•

How to prepare using the case preparation model

•

Using the topic box model to structure the meeting and as a way to effectively question the other expert

•

The reasons for areas of agreement and disagreement

•

How to work effectively towards the Joint Statement and how to draft it.

Amendment to page 83 – RICS Expert Witness Training is delivered

by RICS and not Legal Experience Training as previously advertised.

To find out more: t 024 7686 8584 w rics.org/expertwitnesstraining e drstraining@rics.org

Hazards in Commercial Domestic Cleaning Our own research has shown that the situation is that cleaners are provided with no or little training in cleaning and health and safety issues before starting, this means that the cleaners are not aware that a customers’ home is a working site, and without adequate training in assessing risk, often expose themselves (or their subcontracted staff) to unnecessary risk. Study after study have shown that the level of health problems reported by cleaners is high compared to other occupations2, but that’s just the reported problems.

It is expected to be higher still when you add the likely unreported instances.

Background The domestic cleaning market in the UK is estimated to be worth nearly £3 billion, with more than 2.45 million households using some form of paid assistance in their home1 It is highly likely that these figures seriously underestimate the true extent of the breadth of the market Since a significant proportion of the domestic cleaning market is comprised of small family-run sole traders or individual self-employed persons for tax purposes, there may not be any reliable numbers of persons actually engaged in domestic cleaning tasks.

Now we come to the core problem of this very substantial market.

We are familiar with our own homes, and if we are honest, we really don’t consider the hazards that could be present. There is a disconnect between what we consider a safety risk in our own homes with that of a place of work, even the humble office is elevated higher than the home. Yet, the home to a complete stranger presents a wider and more unpredictable range of hazards than an office. Now, imagine you are a cleaner who has four houses to clean every day, 5 days a week, that’s 20 potentially different worksites, but more importantly 20 potentially different and unknown health and safety situations.

While the larger operators tend to employ cleaners through a local franchise network, and are therefore subject to the usual health and safety requirements under the law, it is the significant number of smaller operators which are not employing people, but adopt a ‘quasi-employed’ status of the cleaners, whereby the cleaners are technically self-employed, but the business owners set the rates, conditions, practices and handle sales; while the cleaners themselves provide the labour and have to ensure their own safe working practices. The justification for this status is clearly a tax issue, but it could be considered to be an attempt to abdicate direct responsibility for any potential health and safety issues. For example, cleaners are asked to supply their own gloves and told to make their own provision for their safety.

EXPERT WITNESS JOURNAL

This may sound a touch alarming, but consider the fact that every home is very different and individual, and every home owner has a different attitude to health and safety. Now consider a cleaner – a complete stranger to the home – coming in unaware of a range of hazards that the homeowner has no appreciation or inclination of the severity of the hazards.

84

SUMMER 2017

The first step in preventing those hazards posing a risk by causing an injury is to know what those risks are, how serious they are and who is likely to be exposed to them. This process is a risk assessment and its job is to determine what measures must be put in place in order to minimise the risks identified. This is a legal responsibility for employers to undertake for their activities, but for self-employed people and smaller operators with less than 5 employees it’s not required to have a formal assessment written down, but doesn’t mitigate the risk nor protect the cleaners.

It can be argued that a proper understanding and assessment of the risks involved is both the right course of action and a preventative measure to avert costly problems from arising, like absenteeism, litigation and other disputes.

Hazards like broken glass, infection, household chemicals, poorly or damaged fittings, animals or damaged electrical cleaning appliances.

It’s not just the cleaner being unaware of the potential hazards, but they may not know how to assess the potential risks. Management may also be unaware of any potential problems.

Hazards So, what hazards is a domestic cleaner likely to find?

There are three broad categories of hazards: Physical, Chemical and Infection. Physical hazards include falls, trips, slips, musculoskeletal problems, sharp edges on glass, metal and other sharp objects, but also puncture wounds from needles and burns from hot objects and corrosive chemicals. Chemical hazards include irritating and toxic gases from chemical reactions as result of a number if different popular domestic cleaning products coming in contact with each other, energetic reactions producing hot gases which are breathed in or impact the face, or internal injuries from breathing in corrosive sprays. Infection hazards include handling infected human or animal wastes and bodily fluids, wastes from pests, blood-contaminated items (plasters, bandages, needles), contaminated food products and mould.

In the light of recent cases, this issue of ‘quasiemployed’ status is likely to highlight the commercial domestic cleaning practices.

References 1, Source from Molly Maid http://www.thefranchisemagazine.net/page/molly-maid-uk-ltd/domestic-cleaning-market-in-uk-an-overview.php 2, ‘Caring for cleaners: Guidance and case studies on how to prevent musculoskeletal disorders’, pg 5, HSE book HSG234, www.hse.gov.uk/pUbns/priced/hsg234.pdf

On the other side Each hazard from one of the three categories could be introduced into the home by a cleaner, by being not aware of the hazards posed to the household. For example, a cleaner could be recovering from a Gastrointestinal infection (food poisoning), be feeling ok and yet still be infectious. This cleaner could unwittingly introduce that infection into the household through poor personal hygiene. This is especially critical if there are any members of the household that are more vulnerable to infections through chronic illness or infirmity.

Futureclean Assured Systems are a complete cleaning system is a combination of many different parts that must work together seamlessly. Some of these parts, like training, are often not considered to be important, but without all the parts working together the cleaning standards deteriorate.

In another example, a cleaner could have inadvertently damaged the cable or plug of a vacuum cleaner through carelessness and thereby introducing a potential physical hazard to the household when they come to use the equipment. In another example, a cleaner uses a common descaling toilet cleaner to clean the toilet bowl, unaware that bleach has been used by the household. The act of mixing the two produces toxic Chlorine gas on contact resulting in potentially severe inhalation injuries.

Futureclean Assured Systems can advise and assist on all aspects of cleaning and facilities management, below is a list of services we offer: Advisory Services including: Auditing, Gap Analysis, Risk and Safety Management, Specifications & Manuals, Design & Development and Specialist & Unique Cleaning Systems Support Services including: Facilities Management, Marine & Environmental Consultancy, Food hygiene and Safety, Infection Control, Hospitality, Industrial & Construction Cleaning and Technical & Process Cleaning Training Services including: Online, On-site, Practical , Auditing existing training, Custom Course Development and Training the Trainer.

Research & Development including: Cleaning Practices, Cleaning Products, Protocols & Standardised Testing, Cleaning Systems and Hazards & Risks in Cleaning.

Our in-house cleaning experts have proven track records, with decades of practical and managerial experience at the highest level, in delivering many various answers to cleaning problems in many different industries.

Understanding and Managing Risk Fundamentally, it takes knowledge to determine the nature and severity of the risks Clearly a sense of proportion is needed – the potential hazards are there, but it is the awareness and the knowledge in how to assess the risks that are absent, and that is the key point to make.

EXPERT WITNESS JOURNAL

No matter how complex or how intractable the problems are, Futureclean Assured Systems will assure you complete confidence in our ability to support you every step of the way, and beyond with our commitment to on-going support.

Web: www.futurecleansystems.com Tel: 0330 2232 780 Email: info@futurecleansystems.com

85

SUMMER 2017

Simulation Governance for the Expert Witness

By Angus Ramsay to a particular problem in the theory of elasticity, requires the solution of three sets of equations; these being equilibrium (balance between applied loads and internal stresses), compatibility (strains that lead to continuous displacements) and the constitutive or material relations (between stresses and strains, e.g., Hookeâ&#x20AC;&#x2122;s Law) â&#x20AC;&#x201C; see Figure 2 which illustrates how these equations are derived for a bar of area đ??´ and length đ??ż under an axial load đ??š. Strength of materials solutions satisfy these three sets of equations exactly and, therefore, may be considered as known theoretical solutions.

Introduction The success of humans as engineers capable of designing and making tools and, later, improving on these as knowledge of materials and manufacturing processes has advanced is without question; today we can create new materials such as graphene, and new ways of manufacturing items, e.g., three-dimensional printing. Equally, as humans, we are perfectly capable of making mistakes. Sometimes these are trivial and do not affect others, but at other times they can be serious. When serious, mistakes can lead to injury or even loss of life and/or significant financial loss for an organisation. In such cases, an expert witness may be employed to assist in uncovering the reason for the mistake so that blame may be fairly apportioned and costs recovered.

At the root of most engineering design is the necessity for the artefact, a structure or mechanical system, to possess sufficient stiffness for it to be serviceable and sufficient strength for it to be able to withstand the ultimate load it is likely to see. In the modern limit state design, these conditions are, respectively, known as the serviceability limit state (SLS) and the ultimate limit state (ULS). The engineering discipline that deals with such questions is that known as Strength of Materials. This discipline has a long and interesting history, see Timoshenkoâ&#x20AC;&#x2122;s â&#x20AC;&#x2DC;History of Strength of Materialsâ&#x20AC;&#x2122;, [1], which, through application of the Scientific Method (see Figure 1), leads to development of the Theory of Elasticity.

Figure 2: Linear elastic relations for a one-dimensional continuum Whilst the theory of elasticity is quite general, the number of known (strength of materials) solutions is limited to problems with simple geometry, supports, loading and materials. For example, whilst solutions are known for the case of cylinders or spheres under internal pressure, when these are put together, e.g., the case of a cylindrical pressure vessel with hemispherical ends â&#x20AC;&#x201C; see Figure 3, the geometry is such that there is no known theoretical solution. The blue line represents the undeformed geometry at zero pressure and the black line the deformed geometry when the vessel is subject to internal pressure.

Figure 1: A schematic of the Scientific Method https://en.wikipedia.org/wiki/Scientific_method

Strength of Materials and the Theory of Elasticity Anyone who has delved into a strength of materials text will realise that to obtain the theoretical solution EXPERT WITNESS JOURNAL

Figure 3: Transition between pressure vessel cylinder and hemispherical end 86

SUMMER 2017

In the early days of the commercialisation of the finite element method it was realised by some that: “… both coding and modelling errors were commonplace and only time separated the [simulation] community from computer-aided catastrophe [CAC]”.

The radial displacement due to internal pressure for a hemisphere is less than that for a cylinder under the same pressure. This means that the radial displacement at the interface between the two components will be something in between that for the cylinder and that for the hemisphere. This will disturb the solution local to the transition but away from this point the solution in terms of displacements and stresses will revert to that of the basic component.

This quotation comes from Professor John Robinson who was one of the founders of the National Agency for Finite Element Methods and Standards or NAFEMS, [2]. NAFEMS is now an international organisation but retains the original acronym.

In the days before the theoretical solution to this problem could be approximated using computation approaches like, for example, the finite element (FE) method, the engineer would probably have had to rely on empirical, measured, data obtained by conducting experiments on real pressure vessels to predict the stresses in the transition region.

Just such an incident of CAC did occur in the early 1990s when the Sleipner Platform A sank in a Norwegian Fjord, [3]. No one was injured but the estimated cost of the incident was some $700m! The subsequent inquiry found that FE modelling local to the failure had been inadequate, underpredicting the shear forces by some 45%. This, together with inadequate reinforcement detailing in the failure region, was identified as the cause of the failure. It is extremely revealing that had the engineer or his managers checked the finite element result using a simple hand calculation, the error would have been spotted!

With the development of the FE method and digital computers in the second part of the last century, it became possible to solve for the displacements/stresses in problems such as that of Figure 3. There is nothing mysterious about the FE method, it is simply a numerical method that approximates the governing equations (see Figure 2) over the domain of interest (represented by a mesh of finite elements). This discretisation process leads to a set of simultaneous, linear equations for the unknown quantities (generally nodal displacements) which can be rapidly solved for to provide displacement and then stress fields.

Henry Petroski has written extensively and very readably, on the subject of failure in engineering design and points out the important role of failure in successful design, [4]. Case studies of engineering failure provide an invaluable resource for practising engineers. In [5], for example, Petroski points out that major failures, at least for bridges, have been observed to be spaced at approximately thirty-year intervals. The reason for this is postulated as being the result of a ‘communication gap’ between one generation of engineers and the next; the raison d’être why structural members or components were designed in the way they were, being lost.

With the FE method, the practising engineer now has a software tool that, in educated hands, enables them quickly to determine displacements and stresses in structures/components that don’t fit into the framework of problems having known theoretical solutions.

Its use in industry was, for a long time, left in the hands of specialist design analysts who worked alongside design engineers providing them with analytical support; the author began his career as a design analyst. There was a reason for this and it lies in the requirement for a great deal of specialised training and knowledge to ensure that the results from the finite element system are sound. Times have changed.

Today, the finite element method is considered a mature technology, with very sophisticated software and graphical user interfaces safe for engineers with little or no theoretical background to use; the so-called Democratisation of Simulation. With democratisation of simulation, it is envisaged that engineers with little or no finite element background can use sophisticated software and generate sound engineering solutions.

This is how the software is sold by vendors. But this is of great concern to those engineers who have long worked in the field of numerical simulation and realise, through experience, the potential danger of adopting this approach.

EXPERT WITNESS JOURNAL

Adopting a similar mode of enquiry, but applying it to the field of numerical simulation, the author of this present article has, over recent years, developed an interest in explaining some of the possibilities for engineering and in particular finite element malpractice. The findings from these studies have been published widely. In particular, an initiative called the NAFEMS Benchmark Challenge has led to two volumes of studies, [6].

The articles referred to were written for practising engineers but the lessons learnt from these are of wider significance and in this current article the author has attempted to distil the essential findings of his study and cast it in a manner which it is hoped will be suitable for the expert witness. Whilst this article concentrates on the author’s particular field of experience, i.e., mechanical/structural engineering and the safe design of structures and components, the explanation, findings and conclusions will find equal resonance in other fields of engineering endeavour, e.g., 87

SUMMER 2017

might give a better solution and so chooses a 4x4 mesh of lower-order (four-noded) plate elements as shown in the figure.

the application of computational fluid dynamics (CFD) to the prediction of fluid flow around structures or inside turbomachines; the principles are the same and the same message applies.

In processing the finite element results, the engineer integrates the stresses across the centre line and calculates the average bending moment. The value thus obtained is only 0.875 times the theoretical value.

Finite Element Malpractice The FE method is an approximate method in that for a given mesh, the solution will contain some error.

However, it is also a convergent method which means that as the mesh is refined it will normally, provided the problem has been properly modelled, converge to the theoretical solution. Whilst there are a number of different FE formulations, the conforming finite element (CFE) formulation is the one which is used almost ubiquitously in commercial FE systems. By definition, as the method is approximate for a given mesh, one or more of the three conditions identified in Figure 2 will need to be approximated. In the CFE formulation it is the equilibrium conditions that are approximated with the constitutive and compatibility conditions being satisfied exactly.

The lack of scrutiny exhibited by the engineer leads to him accepting an average bending moment below the correct value and means that he thinks the plate can take some 12.5% more load than it can actually cope with before beginning to become plastic. If he is using a formal code of practice, e.g., a British Standard or a European Code, for the design then this might well provide highly conservative allowable stress values for such a design to cater for, amongst others, the fact that the strength of the plate material might vary from that specified by the manufacturer.

What this conservatism does not and cannot account for is that the engineer has, through finite element malpractice, failed to obtain an accurate value for the bending moment!

The following example demonstrate how the approximation of equilibrium, implicit in the CFE formulation of FE, can lead to unsafe structural designs.

Simulation Governance To assist the engineer in avoiding such FE malpractice as noted above and also to provide a logical framework for the expert witness to uncover such bogus results, there is a relatively new field of scrutiny that has been developed called Simulation Governance, a term coined by Barna Szabo [7] â&#x20AC;&#x201C; see Figure 5. It involves three aspects namely Verification, Validation and Uncertainty Quantification. Validation requires the mathematical model accurately to predict real behaviour, i.e., nothing more than an application of the scientific method. Verification, on the other hand, admits that the mathematical model, even if the correct model, may not generally be solved exactly through numerical simulation and offers guidance on how the errors inherent in the approximation might be recognised and controlled. Uncertainty quantification acknowledges the fact that some data in an engineering analysis, e.g., the material properties, might not be known exactly and that the accuracy of this data might ultimately influence the results of an analysis and also the engineering decisions taken from these results.

A Simple Structural Design Problem This problem comprises a rectangular plate loaded uniformly over the entire area and simply supported on two opposite sides as shown in Figure 4. The design engineer wishes to ensure that the plate remains elastic under the design load and a single variable, the plate thickness, is available for optimising. In order to do this the maximum bending moment needs to be determined. It is a simple problem in that the internal actions can be found from simple consideration of static equilibrium and any engineer should know the equation for the bending moment along the centre line of an equivalent beam where it is a maximum.

The bending moments as they act on the centre line of the plate are shown in the figure.

Figure 4: A uniformly loaded plate problem If the engineer is unaware of the fact that the problem is statically determinate and that an expression is available for the maximum bending moment, he/she might try his hand at a FE model to obtain the solution. As the geometry of the plate is rectangular it could be meshed with a single element but our engineer is aware that some form of mesh refinement EXPERT WITNESS JOURNAL

Figure 5: A schematic of Simulation Governance

88

SUMMER 2017

It is observed from Figure 6 that the finite element result is converging to the theoretical value in a monotonic and asymptotic manner. This is the expected behaviour if there are no bugs in the software and if the correct mathematical model is being used.

Verification When simulating structures or mechanical systems, the basic mathematical model is that of the theory of elasticity and, through the work of pioneers presented in [1], there is plenty of evidence that, accepting uncertainties in the engineering data, this model matches closely with observations. As such it is verification that is of primary concern to many practising engineers, i.e., how close does the simulation match the results that would be obtained if the mathematical model were solved exactly? Verification can be considered in two parts, namely software verification and solution verification.

From this software verification example, useful guidance is obtained. Firstly, it is seen that the solution does appear to converge to the theoretical result. Secondly, the moment can be recovered to within 1% accuracy with a 16x16 mesh. It is, in addition, noted from this study that convergence is from below the theoretical value. In contrast to a situation where the FE solution converges from above the theoretical value, this means that the engineer really does need to conduct mesh refinement if his result is not going to be non-conservative.

Software Verification – Simulation for Known Theoretical Solutions The practising engineer needs to guard against the possibility that the FE system he/she is using contains a bug. Commercial FE systems contain millions of lines of code and multiple ways that different parts of the code may be accessed and it is highly unlikely that any such code is free from bugs or errors. It is also the case that numerical schemes within FE systems whilst correctly coded, might not be appropriate for the problem being studied, e.g., numerical schemes are used to integrate quantities over elements and these may be approximate or exact. It is thus incumbent on the practising engineer to ensure that the software being used is actually capable of modelling the sort of problem being studied. The way this is done is to test the software on a problem which has a known theoretical solution such as one given in a strength of materials text. In the absence of issues with the simulation software, solution verification provides valuable insight into how the software converges with mesh refinement and, thereby, particularly if the software verification problem is chosen to be similar to that being studied, a useful indication to the level of mesh refinement required for the real problem being considered. For the simple plate problem considered earlier, the ratio of the finite element moment to that of the theoretical moment is shown in Figure 6 for uniform meshes of increasing refinement.

Solution Verification – Simulation for Unknown Theoretical Solutions Having conducted the prerequisite software verification, the engineer is in a good position to consider the actual problem; the necessary faith that the software can model such a problem having been developed.

He/she should also have a reasonable idea of the level of mesh refinement required to produce a solution of acceptable engineering accuracy.

A very similar problem to that used for software verification is the case of a skewed plate and this will be used for the solution verification problem. For the skewed plate, the engineer assumed that there is no known theoretical solution for the bending moment across the centre of the plate. However, through software verification we know that the software we are using is capable of recovering the theoretical solution for the non-skewed plate and this gives us confidence and faith that the same will be true for the skewed plate.

Figure 7: Solution verification example – skewed plate configuration

The Status Quo in FE Analysis Finite elements for continua are generally offered in the form of triangles and quadrilaterals, for two-dimensional problems, or tetrahedra and hexahedra for three dimensional problems. Given an engineer-

Figure 6: Software verification example – rectangular plate configuration EXPERT WITNESS JOURNAL

89

SUMMER 2017

tion also removes many of the issues occurring with low-fidelity CFE systems. For example, an EFE system would only offer the engineer a single plate element capable of working effectively in all situations.

As the reader will have detected, the author is passionate about the virtues of the EFE formulation for practising engineers and some of these virtues, which allow the engineer to concentrate on engineering rather than the numerical vagaries of the FE system, were discussed in [8].

ing problem then the first step in any analysis is to create a mesh. This might require using a number of elements, but the idea of a basic mesh is a useful concept, this being the one that captures the geometry of the problem with the least number of elements, possibly even a single element as for the plate problem presented above.

Commercially available CFE software tends to adopt what might be termed very low-fidelity elements in that they cannot model much more than a linearly varying stress field. Most engineering problems involve significantly higher degree stress fields so that the basic mesh for a problem will generally produce a rather poor approximation to the theoretically exact stress field. As discussed previously, the approximation for CFEs is in the equilibrium conditions so that the basic mesh will produce stresses that are not in equilibrium with the applied load. This is of concern since if the engineer cannot rely on the stresses being in equilibrium he/she cannot therefore ensure that sufficient material (plate thickness in the plate example) is available to resist the stresses, i.e., a sound design cannot be established.

Issues with Published Advice and Data The practising engineer, in his/her quest for the truth, is susceptible to misinformation particularly when published by authoritative sources. An engineer’s time is often extremely limited and if a seemingly sound source of helpful information is available then it is likely that it will be used. However, as will be illustrated in this section, this is not always the case with poor advice being offered by organisations that should know better and published engineering design data being incorrect and even sometimes unconservative.

Uncertainty in ASME Thermal Expansion Data In a recent project, the author had to make use of published thermal strains listed to only one significant digit. The published data came from the Boiler & Pressure Vessel Code of Practice published by the American Society of Mechanical Engineers (ASME).

The thermal strain for a temperature rise from 20oC to 50oC was listed as 0.3mm/m. This means that the actual value could lie between 0.25 and 0.35mm/m which led to an uncertainty in the calculations of ±16.67%.

There are other potential issues with the use of low-fidelity CFE elements. For example, because the lowest degree elements are found to perform rather poorly under certain loading conditions, ‘numerical wheezes’ have been adopted, to improve their performance. Whilst this is not the place to discuss these issues in any detail, it is worth noting that as a result of these the engineer using a typical FE system is generally faced with making a choice of element type, often from a large range, for one particular structural form, e.g. a plate type structure as considered earlier in the design problem. Each element type will generally produce a different result for a given mesh and may even converge to a different solution with mesh refinement – some of these converged solutions being spurious or incorrect. Whilst seasoned FE practitioners understand these issues and are generally able to make informed decisions as to the type of element to use, it is unreasonable to expect an inexperienced engineer to do likewise.

FE in Codes of Practice – FIB The International Federation for Structural Concrete (fib) publish authoritative documentation on the best design practice for concrete structures in their Model Code for Concrete Structures 2010, [9] In this document, they permit the use of FE analysis as an approach to the design of concrete structures and in section 7.11.2.2 a description of the Finite Element Method is provided together with some basic guidance and words of caution including the statement that:

In the author’s view, the low-fidelity nature of commercial FE systems is a major hindrance to the idealised aim of the democratisation of simulation. Many of these issues disappear when high-fidelity elements are adopted and, particularly, when different element formulations are used. For example, the equilibrium finite element (EFE) formulation provides solutions that, as the name suggest, satisfy exactly the equations of equilibrium. Clearly, they are still approximate and this approximation manifests itself in discontinuous displacements at the vertices of element edges. However, with these elements even a single element (a basic mesh) could have been used to solve exactly the design problem presented earlier. The EFE formulaEXPERT WITNESS JOURNAL

‘The internal stresses [from a FE model] are lower, compared with an exact solution.’

Anyone with a background in FE theory will recognise this statement as nonsense. Theory shows that for the CFE formulation, the strain energy of the model will generally be less than the theoretical value when the model is force (rather than displacement) driven. Whilst firm statements can be made on the bounds of integral quantities such as the strain energy, it is not possible to extend this statement to pointwise values of stress.

90

SUMMER 2017

The simple plate problem of Figure 4 provides an example, it was seen that for the four-noded element the bending moment (a function of the stress) did indeed converge from below the theoretical value.

However, as shown in Figure 8, if the eight-noded plate element is used then the same quantity converges from above the true solution.

In the plate studied earlier in this article we were concerned with the (total) bending moment across the centre of the plate. Timoshenkoâ&#x20AC;&#x2122;s solution to this problem is expressed as the distribution of moments per unit length with the units Nm/m as opposed to Nm for a moment. A plot of the theoretical moment distributions is given in Figure 10.

Figure 10: The theoretical solution (moments in đ?&#x2018;Ľ direction and đ?&#x2018;Ś direction) The maximum moment occurs at the centre of the free edges and this would govern the design of a steel plate. For a reinforced concrete slab, the moment in the đ?&#x2018;Ś direction is also important as the slab must be able to resist these moments through the addition of transverse reinforcement bars. The moment in the đ?&#x2018;Ś direction is a maximum at the centre and the value of beta for this moment quoted in Figure 9 (0.0102) is not correct. The exact value is near to 0.0120 which is about 18% greater than the value quoted â&#x20AC;&#x201C; it looks like a typographical error whereby the last two digits have been transposed. Thus, using the values from Timoshenko could, in this case, lead to the designer not placing sufficient reinforcement and thereby obtaining an unsafe design.

Figure 8: Convergence of bending moment for lower and higher-order plate elements Whilst the advice offered by fib is clearly incorrect, it does have the virtue that if the engineer believes this to be true then it is possible that they might consider mesh refinement more seriously in order not to be using an overtly non-conservative stress value in assessing the safety of a design.

Timoshenkoâ&#x20AC;&#x2122;s â&#x20AC;&#x2DC;Theory of Plates & Shellsâ&#x20AC;&#x2122; Whilst one might hope that engineering text books are free of errors this is not always the case and indeed errors may propagate through new editions, reprints and, if as in the case presented here where the text is effectively the primary monograph on the subject, even to texts by other authors.

It is interesting to note that this error has propagated into more recent texts on plates. For example, the same error can be found in [11] which was published in 2004, i.e., some 15 years after the last reprint of Timoshenkoâ&#x20AC;&#x2122;s text.

Timoshenkoâ&#x20AC;&#x2122;s â&#x20AC;&#x2DC;Theory of Plates & Shells, [10], is a renowned treatise providing practising engineers with theoretical solutions for plate and shell members.

These solutions are essentially strength of material solutions but differ from those presented in standard texts in that the solutions are not closed-form, i.e., they are based on an infinite series of transcendental, typically trigonometric, functions. Thus, in addition to providing the equations for displacements and stresses, tables with non-dimensional displacements and stresses/moments are provided for a range of common plate and shell configurations. The plate configuration given in Figure 9 is identical to that studied earlier in this article.

This error was detected by the author when comparing results from an FE model he had generated with those of Timoshenko, [12]. This demonstrates a useful point, namely, that when used correctly, a FE model may be used to check published data. The author is collaborating with a colleague in checking other results in Timoshenkoâ&#x20AC;&#x2122;s text and, by this process, a number of other errors have been detected.

NAFEMS Benchmark Challenge Number 2 In this challenge (NBC02) the author, after finding anomalies in published data, set the problem of considering the collapse load of a uniformly loaded rectangular plate simply supported on all edges. For the particular configuration considered the uniform load or pressure to cause collapse from two published results gave:

Figure 9: Reproduction of Timoshenkoâ&#x20AC;&#x2122;s solution for the plate configuration studied in this article

EXPERT WITNESS JOURNAL

The Steel Construction Instituteâ&#x20AC;&#x2122;s (SCI), Steel Designersâ&#x20AC;&#x2122; Manual (SDM), [13] 91

- 103kPa

SUMMER 2017

Roark, Formulas for Stress & Strain, [14]

rium so that a sound design can only be assured if the mesh has been refined sufficiently. The low-fidelity nature of the elements used means that the level of mesh refinement required might be quite considerable and, further, to overcome numerical issues with low-fidelity elements, software vendors offer a veritable plethora of different element types for the same structural form, e.g., plate elements.

- 178kPa

Clearly, these results are rather different and with such a big difference and no knowledge of which figure is correct, the author analysed the plate in newly developed finite element software designed for this purpose.

The result was: Ramsay Maunder Associates (RMA), Equilibrium Finite Elements (EFE) - 231kPa

The democratisation of simulation means, in practice, that software vendors are supplying ever more sophisticated engineering software for an audience of increasingly inexperienced and uneducated engineers and they are doing this without paying due attention to the good practice of simulation governance that more experienced practitioners naturally adopt in their work.

NBC02 requested that readers consider the reason for the difference between published results and to conduct a FE analysis using conventional commercial FE software to determine the true value. Whilst not all readers obtained the same value as EFE, two readers reported exactly the same value to three significant figures. As the value from EFE was not available to the readers, this exercise served as a blind experiment that provided verification for EFE.

Computer-aided catastrophes have occurred and the current trend is only likely to increase the risk of finite element malpractice leading to more events. Whilst these events may or may not be as financially catastrophic as the Sleipner Incident, they may cause injury or death and they may lead to such a significant loss of corporate reputation that a company ultimately fails. Death and injury may lead to an investigation by a body such as the Health & Safety Executive and such an inquiry might well involve the employment of technical experts and expert witnesses. Also, the financial loss to a company who, for example, outsourced the design of a critical component or structure, might well wish to sue that design house for damages and loss of business and/or reputation if the design failed spectacularly in service. Such scenarios are very common and again it will be the technical expert who is called upon to assist in an inquiry or legal proceedings.

Upon further research, the author discovered that the value reported in the SDM was derived from an archaic and incorrect linear elastic approximation whereby the 103kPa reported, rather than being the collapse load, was an approximation of the load to cause first yield in the plate. The results presented in Roark (178kPa) were based on numerical simulation of some forty years ago and were insufficiently refined to give reliable results. Whilst both published results were conservative in that they underpredicted the collapse load, in an economic climate where material waste needs to be minimised, the use of the SDM to design plates might have led to the use of a significantly thicker plate member than was actually required.

Practical Conclusions for the Expert Witness Accepting the degree of uncertainty in the various parameters used to define a model, all problems tackled by engineers have a theoretical solution. However, only a few of the problems have known theoretical solutions. Where there is no known theoretical solution the engineer adopts numerical simulation tools, such as the FE method, to obtain an approximation to the theoretical solution from which he/she can assess the stiffness and strength of a design and check whether this is sufficient to satisfy the appropriate SLS and ULS conditions laid down in the relevant code of practice. Whilst computer software is available to undertake design directly, e.g., to provide values of a plate thickness for a given set of supports and loads, the majority of design is conducted in what is termed a design-by-analysis or iterative approach, e.g., the designer tries a particular plate thickness and then modifies this according to whether or not the SLS and ULS conditions are satisfied.

The technical expert/witness called upon to present their opinion about the facts in such a case needs to have a complete understanding of the scientific method as applied to numerical simulation, i.e., simulation governance. This understanding will not be gained without considerable practice in the field of simulation, e.g., finite element analysis, and also a significant academic understanding of the mathematical methods used in such simulation tools. Thus, those firms wishing to employ a sound technical expert will need to scrutinise the CV of the potential expert to establish that this essential mix of practical and academic credentials is met.

The technical expert scrutinising decisions based on the outcome of numerical simulation needs to be cautious particularly if no evidence has been provided of simulation governance and it is increasingly the case that engineering reports provide no evidence of software and solution verification essential if the conclusions are to be considered valid. This article has presented some of the potential pitfalls that may lead

The conventional finite element software available commercially is typically based on a CFE formulation of low-fidelity. The CFE formulation fudges equilibEXPERT WITNESS JOURNAL

92

SUMMER 2017

to inaccurate or simply erroneous results being presented. There are others not discussed in this article and the best advice available to the technical expert or expert witness is to treat all results presented as suspect until they can be proven otherwise, i.e., to adopt a familiar interpretation of the Napoleonic code of jurisprudence, ‘guilty until proven innocent’!

[12] Angus Ramsay & Edward Maunder, ‘An Error in Timoshenko’s Theory of Plates & Shells’, The Structural Engineer, June 2016.

[13] Steel Designers’ Manual, The Steel Construction Institute, 7th Edition, January 2016.

[14] Roark’s Formulas for Stress & Strain, 6th Edition, McGraw Hill, 1989.

Further Information The regularly updated knowledge base at the author’s company website provides comprehensive information on many of the topics discussed in this article including original versions of the NAFEMS Benchmark Challenges and can be reached at the link below. www.ramsay-maunder.co.uk/knowledge-base/

Author Angus Ramsay is a chartered engineer and fellow of the Institution of Mechanical Engineers. He is the managing/engineering director at Ramsay Maunder Associates and is a Technical Expert at HKA (formerly Cadogans). Angus is a founding member of, and assessor for, the NAFEMS Professional Simulation Engineering (PSE) certification scheme and is a member of this organisation’s Education & Training Working Group. He is also a member of the Structural Technology & Materials Group, a special interest group of the IMechE and has held honorary positions at Nottingham Trent University and the University of Exeter.

Acknowledgments The author is grateful for the comments and suggestions of Edward Maunder, Independent Technical Director at Ramsay Maunder Associates who provided a technical review of this article and to Max Ramsay for proof reading the article.

References [1] Stephen P. Timoshenko, ‘History of Strength of

Materials’, Dover (1983).

[2] Peter Bartholomew, ‘NAFEMS: the early days’, NAFEMS Benchmark Magazine, January 2016.

Finite Element Specialist and Engineering Consultants

[3] Bernt Jakobsen, ‘The Sleipner Accident and its Causes’, Engineering Failure Analysis, Vol. 1, No. 3, pp 193-199, 1994.

The directors at Ramsay Maunder Associates have significant backgrounds as practising consultants as well as academics in the field of computational structural mechanics. Our associates are highly experienced and wellrespected engineers working in a variety of fields and are able to offer advice and support as required.

[4] Henry Petroski, ‘To Engineer is Human; the Role of Failure in Successful Design’, St Martin’s Press, 1985.

The combination of theoretical and practical skills offered by our company is rare in the industry and is becoming increasingly important as engineering companies rightly demand that the engineering analysis they commission is conducted with due diligence and adherence to good Simulation Governance principles.

[5] Henry Petroski, ‘Design Paradigms: Case Histories of Error and Judgement in Engineering’, Cambridge University Press, 1994.

The following testimonial came from a recent project we conducted for a supplier to the highly regulated nuclear industry: "We at Nirvana Engineering required independent verification of an essential supplies seismic battery rack destined for an EDF nuclear site. The project required FE modelling of the proposed rack structure, supported battery system and the projected earthquake loadings.

We engaged Ramsay Maunder Associates to undertake this work and found their diligence second to none. They excelled at every level throughout the project and I would not hesitate to recommend their services to any prospective client."

[6] Angus Ramsay, ‘The NAFEMS Benchmark Challenge: Volumes 1 and 2’, NAFEMS, 2017.

[7] Barna Szabo, ‘A Case for Simulation Governance’, Desktop Engineering, February 2015.

[8] Angus Ramsay, Edward Maunder & Jose Moitinho de Almeida, ‘What is Equilibrium Finite Element Analysis, NAFEMS Benchmark Magazine, January 2017.

We are always pleased to discuss projects with clients and our contact email and website details are provided below.

[9] The fib Model Code for Concrete Structures 2010, Ernst & Sohn, 2013.

Email: angus_ramsay@ramsay-maunder.co.uk Web: www.ramsay-maunder.co.uk Phone: 07917 833234

Russell Shaw, Managing Director, Nirvana Engineering Ltd

[10] S.P. Timoshenko & S. Woinowsky-Krieger, ‘Theory of Plates and Shells’, 2nd Edition, McGraw-Hill International Series, 28th Printing 1989.

Next issue EWJ 21- Autumn 2017 Features; Catastrophic Injury- Trauma Cladding - Expert Witness views

[11] R. Szilard, ‘Theory and Application of Plate Analysis’, Wiley 2004.

EXPERT WITNESS JOURNAL

93

SUMMER 2017

Hazards Associated With Water Quality in Closed Pipe Systems

by Dr Pamela Simpson Pre-commission cleaning of closed circuit pipework systems and the subsequent monitoring of water quality are essential in any building. The implications of getting these wrong can be catastrophic. The resulting problems include disruption to occupants whilst systems are re-cleaned or, in the worst cases, complete closure of buildings whilst entire systems are ripped out and replaced due to early failure. But it seems that although the risks associated with open systems (where the circulating water might come into contact with humans) are generally appreciated, there is less awareness of the problems that can affect closed systems

that sand, grit, jointing material or welding slag can cause blockages and consequent heating or cooling dead spots.

Danger not ended All of this debris should therefore be removed by dynamic flushing of the system during pre-commission cleaning. But successful removal of these items does not end the danger.

Most closed re-circulating systems are constructed, predominantly from carbon steel pipe. Carbon steel has the significant advantage of being both strong and cheap. However, as we should all remember from our school science days, in the presence of oxygen and water it will corrode rapidly i.e. within hours. Our high strength steel is replaced by low strength semi soluble particles of soft brown rust or, if the supply of oxygen is limited, black magnetite.

Thick walled steel pipe has some tolerance built into it and can survive for a while. Thin walled steel has less.

A closed re-circulating pipework system is one which, as the name implies, is closed i.e. the water in them is not exposed to the atmosphere and is not significantly depleted due to evaporation or draw-off.

The water is permanently enclosed and typically spends all of its time being heated, cooled and re-circulated in the process of delivering heating or cooling. All systems serving terminal devices from radiators to fan coil units or chilled beams are examples of closed systems.

Dynamic flushing of pipework involves circulating highly oxygenated water through the pipes at high velocity. Hence, as weâ&#x20AC;&#x2122;re removing the problem of system debris we are potentially encouraging corrosion. As a result, following the dynamic flush, some form of chemical clean is usually essential to remove corrosion products from the surfaces of steel pipes.

The potential problems start during construction. In large buildings, heating and cooling circuits can include pipes that are over a metre in diameter. In an ideal world, these pipes would be installed in a clean, debris free condition but in practice, nothing can be ruled out.

Corrosion process potentially controllable In theory, once the system is put into operation, the corrosion process should be controllable. If there is no replacement of the water in the system, the oxygen in the water should gradually become depleted thereby stifling the corrosion. Furthermore, corrosion inhibitor chemicals can be added to further reduce the rate of corrosion. However, corrosion protection regimes can go wrong and water quality monitoring is therefore essential.

Above, Tubercle formation within a closed hot and cold water system Hard, hats, coke cans, plastic bags and even dead foxes have all been found inside systems. If left undetected, when the pumps are switched on, items such as these can cause major damage to expensive boilers, chillers and pumps. The smaller particles can be just as bad. Some modern control valves have clearances of less than half a millimetre. This means EXPERT WITNESS JOURNAL

Above, Pseudomonas spp biofilm development on surfaces of pipework 94

SUMMER 2017

For, example whenever water is lost from a system, whether due to system modification or to replace a component, fresh oxygenated water is drawn in whilst water containing valuable corrosion inhibitor is lost. This combination can be sufficient to initiate a burst of corrosion.

Increasing electrolytic corrosion risk Other bacteria of concern are nitrate/nitrite reducing (NRB) and nitrite oxidising bacteria. These bacteria can cause rapid loss of nitrite-based corrosion inhibitor from the system and so increase the risk of electrolytic corrosion. Also, the ammonia produced by some of these bacteria when metabolising nitrite can lead to stress corrosion cracking of brass fittings if present at significant levels.

Furthermore, inhibitor levels can drop even without water being taken out of the system. The active ingredients of inhibitors can be used up in developing protective layers on pipes or reacting with oxygen in the water. But, even more shocking is the realisation that some inhibitors can provide a food source for bacteria - and not just any bacteria. The bacteria we can find in closed systems can initiate catastrophic damage on a scale equal to or worse than that cause by simple debris or oxygen induced corrosion.

During the pre-commission cleaning stage of any new build, it is important to prevent microbial presence wherever possible and to avoid areas of low flow rate or dead legs where bacteria can multiply, settle and develop biofilms unhindered by circulating biocide chemicals.

Many types of bacteria present All natural sources of water (including mains water) contain many different types of bacteria, some of which may multiply and lead to problems within closed systems if they encounter suitable conditions for growth. Mild steel, stainless steel and copper are thought to be particularly prone to microbial influenced corrosion (MIC). For MIC to occur, it is necessary for some types of bacterial species to colonise the metal surface. The extracellular material produced by rapidly multiplying aerobic bacteria species eg Pseudomonas spp develops into a biofilm (i.e. slime) which produces both aerobic and anaerobic zones.

Above, The formation process of a microbial biofilm.

Biocide wash For many systems the precaution of a “biocide wash” is included as part of the pre-commission cleaning process. This involves circulating a biofilm disrupting chemical through the system to destroy any biofilms that may have developed during the construction process.

The anaerobic conditions enable anaerobic bacteria such as sulphate reducing bacteria (SRB) to multiply and a potential difference is established between different areas of the metal surface. SRB metabolise naturally occurring sulphate in the water to produce sulphuric acid under bacterial clumps. This results in accelerated, localised pitting corrosion and eventual perforation of the pipe. Corrosion by SRB can cause significant damage to surfaces, in particular where pipework may have bends, uneven surfaces, abrasions, or joints and welds.

Bacteria related problems and their potential to incur major costs on the system owner should never be forgotten or under-estimated. As an over-riding principle it should be remembered that it is much, much easier and cheaper to maintain microbiological control within a closed heating and cooling system than to clean up a badly fouled system containing biofilm.

Microbiological control can be achieved by: • Ensuring the system is free of suspended solids and debris which may be utilised by bacteria as an energy source.

• Carefully managing biocide dosing and maintaining records of the treatment efficacy.

• Regularly monitoring and sampling the system water content in a correct fashion (refer to BS 8552 water sampling of closed systems).

• Maintaining good flow around the system to ensure that biocide treatments are properly circulated.

Corrosion pits associated with microbially influenced corrosion EXPERT WITNESS JOURNAL

95

SUMMER 2017

About the author Dr Pamela Simpson Dr Pamela Simpson is a Chartered Fellow of the Society of Biology. She established Whitewater Technologies in 1998, before which she spent over eight years working in the speciality chemicals industry, initially as a technical and European director of the Industrial Biocides Division of a major chemicals manufacturing and processing company.

She has developed a broad knowledge of the application of microbial control techniques in product preservation and antimicrobial surface protection, process water control, and microbial issues within hot and cold closed systems for both healthcare new-builds and commercial premises. She is also an approved trainer for Legionella awareness courses for water treatment engineers.

Her recent work involved expert work for microbially-influenced corrosion in a range of commercial and healthcare buildings of hot and cold closed systems. She was on the Steering Group for the writing of BSRIA BG50/2013: Water treatment for closed heating and cooling systems.

Above, Scale, biofilm, and corrosion deposits within pipework Using and appropriately qualified contractor It can be seen that pre-commission cleaning and on-going monitoring of water quality incur too many potential pitfalls to be left to installing contractors or building maintenance contractors. It is usually essential that a properly qualified pre-commission cleaning or water treatment specialist contractor is involved in these activities.

Testimonial I worked with Pam on a large healthcare project where specialist input was required to identify potential microbial problems in the heating & chilled water systems. She is very knowledgeable in her field, conscientious, pleasant and approachable. I would highly recommend Pam for all aspects of microbiological matters.

Adam Sands | Senior Project Engineer Vaughan Engineering Services Ltd

BSRIA Guides BG29/2012 Pre-commission cleaning of water systems and BG 50/2013 Water treatment for closed heating and cooling systems provide an explanation of the procedures, tests and monitoring regimes that need to be adopted. However, proper implementation of this guidance requires an organisation that can draw on expertise across a range of specialisms including pipe system design, pre-commission cleaning, water treatment chemistry, corrosion and microbiology.

Dr Pamela Simpson C.Biol, M.I.Corr, M.W.M.Soc

Dr Pamela Simpson is a Chartered Fellow of the Society of Biology.

She established Whitewater Technologies Limited in 1998, before which she spent over eight years working in the speciality chemicals industry, initially as a technical and European director of the Industrial Biocides Division of a major chemicals manufacturing and processing company.

She has developed a broad knowledge of the application of microbial control techniques in product preservation and antimicrobial surface protection, process water control, and microbial issues within hot and cold closed systems for both healthcare new-builds and commercial premises. She is also an approved trainer for Legionella awareness courses for water treatment engineers.

Her recent work involved expert work for microbially-influenced corrosion in a range of commercial and healthcare buildings of hot and cold closed systems. She was on the Steering Group for the writing of BSRIA BG50/2013: Water treatment for closed heating and cooling systems.

This is essential if monitoring is to be carried out at appropriate intervals and the results interpreted in a way that identifies potential risks as soon as they occur so that any necessary remedial actions can be taken before things get out of hand. â&#x2013;

Contact: Tel: 01384 441 851 Mobile: 0777 1788 048 Email: info@whitewatertech.co.uk Web: www.whitewatertech.co.uk Area of work Nationwide

Dr Pamela Simpson, specialist in water microbiology www.whitewatertech.co.uk EXPERT WITNESS JOURNAL

96

SUMMER 2017

COVERS ISS 20:Layout 1 12/07/2017 16:24 Page 3

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

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

Our experience in this sector sector,, and knowledge of our Experts enables us to advise you on the best Expert for you. W We e can promptly provide their timescales and fee f estimates. Each Expert is assigned a a personal assistant whom aspect meaning that you have e one case manager with who m you can discuss any aspec ct of your case from start to finish. W We e are not a ca call all centre, nor an agency agency,, we ar are re here to ensure a seamless process p in the provision of Exp Expert pert mental health assessm assessments ments and there are no hidden n extras.

London Our psychiatrists and psychologists p operate in Lond don and the South East, having g considerable experience in al reports in a range of areas, iincluding: medico-legal providing medico-lega ncluding: • • • • • • •

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

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

COVERS ISS 20:Layout 1 12/07/2017 16:24 Page 4

LAW L AW ENFORCEMENT ENFORCEMENT FORENSICS | FORENSIC FORENSICS | FORENSIC LABS | INVESTIGATIONS/RESEARCH LABS | INVESTIGATIONS/RESEARCH DIGITAL FORENSICS | ACADEMIA | COURT ROOMS AND CRIMINAL DIGITAL F ORENS SIC ICS | ACADEM EMIA | C COURT R OOMS A OO ND C RIMINAL LAW LAW

GCC GCC C FORENSIC FO ORENSIC SCIENCE S C ENCE CI CONFERENCE C ONFERENCE

Supported S uppor ted by by

114-15 4-15 N NOVEMBER OVEMBER 2017 2017 | FAIRMONT FAIRMONT B BAB AB AL B BAHR, AHR, ABU ABU D DHABI HABI

THE MUST THE M UST ATTEND AT TE T ND EVENT EVE NT F OR THE TH T E ENTIRE E NTIRE FORENSIC FO R E N S I C FOR SECTOR THE MIDDLE EAST S ECTOR IN IN T HE M IDDLE E AST ST 14-15 November 14-15 No N vem mber 2017 2017 Fairmont Bab Bahr, F airmo ont Ba ab Al B ahr, Abu Dhabi D Meet with forensic new w for o ensic buyers buy yers in a ne w evolving evolving market mark m et 2 days days of of high-level hig gh-level presentations pr p esentation ns Boutique showcasing the e exhibition exhibition x sho owcasing w the latest latest ttechnology echnolog ogy Co-located 2017 Co-located w with the GCC GCC DNA DNA Symposium Symposium y 2017

www.gccforensic.com w ww.gccforensic.com For F or more more information information c contact: o ontact: T homas G aunt Thomas Gaunt E vent Director Director Event T +971 (0) 4 435 435 6 101 T:: +971 6101 M: +971 +971 (0) 55 314 3339 3339 E: thomas.gaunt@clarionevents.com thomas.gaunt@clarionevents.com

Silver S ilver Partners Par tners

@gccforensic @ gccforensic

M Media e dia P Partner ar tner

Supported S uppor ted by by

@ @gccforensic gccforensic Co-located Co -located with w ith

GCC DN DNA A

SYMPOSIUM SY MPOSIUM

Bronze B ronze P Partners ar tners

/gccforensic /g gccforensic Organised O rg a n i s e d b by y