Your Expert Witness Issue 32

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contents IN THIS ISSUE 7

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Opening Statement

NEWS 9 New standard for expert witnesses to aid the courts 9 RSS launches new guide to using statistical evidence 11 No address? No problem, we’ll serve the injunction via Twitter 11 ‘Landmark ruling’ on village green appeal to Supreme Court BUILDING & PROPERTY 12 International construction conference moves to Bogota 13 How to save your clients time and money TRANSLATION & INTERPRETING 14 Government ‘in denial’ over language services report, say interpreters 15 Capita ordered to pay costs to county council

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CULTURAL ISSUES 16 How my expert evidence assisted the court in a case of murder or manslaughter TREES & FORESTRY 17 The BS5837:2012 Tree Report and the role of the arboricultural consultant VETERINARY ISSUES 18 Why to and when to use veterinary consultants WILLS, LEGACIES & CHARITABLE BEQUESTS 21 Legacy giving on the rise 21 Wills now available online 22 Vital help for victims and witnesses 22 Supporting service veterans 23 New SORPs will ensure highest standards 23 Helping young people with cancer 25 Make sure executors can find your digital legacy, says Law Society 25 Removing the stigma of mental illness

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A to Z WEBSITE GUIDE 26 Our A to Z guide to the websites of some of the country’s leading expert witnesses.

Your Expert Witness

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MEDICAL ISSUES 29 Medical Notes

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NEWS 31 Grant will help better assess veterans’ mental health needs 31 Experts unlock the secrets of Savile’s offending CLINICAL NEGLIGENCE 33 How to avoid becoming my next negligence case 37 GMC finds strong support for sanctions against ‘bad’ doctors 37 Protection for whistleblowers will improve patient safety, report says PLASTIC SURGERY 38 Surgeons condemn offers of Valentine’s ‘prizes’ 38 Arts workshops help reconstruction patients UROLOGY 39 Pelvic organ dysfunction THE COMPENSATION CULTURE 41 What ever happened to ‘compensationitis’?

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ORTHOPAEDICS 42 Infection – a difficult dilemma in orthopaedics GYNAECOLOGY & OBSTETRICS 45 The fight against FGM goes global as UK law is set to toughen 45 HRT study draws response from RCOG 45 RCOG welcomes report on sex and relationship education INDUSTRIAL HEARING LOSS 47 Industrial hearing loss claims remain high

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TRAUMATIC BRAIN INJURY 49 Understanding traumatic brain injury in 2015 PSYCHOLOGICAL ISSUES 51 Psychological training for lawyers

EXPERT CLASSIFIED 53 Expert Witness classified listings 55 Medico-legal classified listings

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Opening Statement ‹ THE EVIDENCE OF expert witnesses is heavily relied upon by the courts. However, for the system to

work effectively, it is essential that the most appropriate expert for any specific case is appointed and a lot of emphasis is placed on the curriculum vitae (CV) of the expert in question. In some cases, the contents of those CV’s have been more akin to a marketing tool and so, in order to aid the courts, The Academy of Experts has produced a model CV format for expert witnesses. The Model Form of Expert Witness CV was launched at the organisation’s annual lunch in January and will sit alongside The Model Form of Expert’s Report, already in widespread use.

• One area of evidence often disputed vigorously is that involving statistics and their interpretation, and further help to the courts is now available here with the publication of the fourth in a series of guides by the Royal Statistical Society. According to its joint author, the latest guide Court Assessment and Interpretation of Expert Evidence will help reduce the number of cases where misunderstood or misleading statistics have led to unsafe convictions.

• Many of our court practices and procedures are seen as archaic – even by those that use them on a day to day basis – although the recent case of a court granting permission for an injunction to be served on the defendant via Twitter may be a sign that things are changing and that our legal system is about to embrace the digital world. With social media often making the headlines – and reaching the courts – for offensive tweets and postings, on this occasion it was used to stop offensive behaviour by a far-right group on a university campus.

• The use of interpreters in court is again in the news with the Institute of Translation and Interpreting accusing the Government of being ‘in denial’ over its response to the recommendations of an independent review on quality standards and the way interpreters are allocated jobs. The government’s contractor, Capita, has been accused by the Institute of supplying the courts with unqualified linguists and of not vetting the sub-contracted agencies used when they cannot provide an interpreter themselves. Capita have recently been ordered to pay Kent County Council over £15,000 in costs over their repeated failure to provide a Slovak interpreter in family proceedings.

• Understanding the language of defendants can often cause problems for the courts, but so too can other aspects of their cultural, religious and ethnic background. Regular contributor, Dr Bashir Qureshi, was able to help in a recent case where a British African Muslim couple were accused of killing their young daughter by starvation as well as sessional beatings. The starvation charge stemmed from allegations that the girl often had to eat from the same plate as her two siblings. However, Dr Qureshi explained to the court that this was a Hindu tradition to create bonding and backed it up with tales from his own childhood in India and of sharing a plate with his sister!

• Legacy giving is on the rise – a subject we covered in depth in our last issue – and solicitors can play a key role in helping clients understand all the options open to them. Now, with the British Red Cross screening a groundbreaking TV advert aimed at the sector, we look at trends in giving along with the latest developments in willwriting and charity legislation. q

Ian Wild

Ian Wild, Director of Business Development Your Expert Witness

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Media failure – data disaster? ‚ HARD DISK FAILURE CAN be extremely frustrating, particularly

when it contains the only copy of your treasured photos or your favourite music collection. Just imagine the despair a client would feel if it was their hard disk which had failed and it contained evidence crucial to their defence. So, what can be done if critical digital media fails?

There are a number of options available depending on the media and the nature of the failure – if it contains crucial evidence or important data, arrange for the media to be inspected by a reputable data recovery company. Griffin Forensics prides itself on providing a friendly, cost effective and professional data recovery service and, where evidence is involved, a forensic data recovery service.

The company has vast experience dealing with all makes and models of hard disks as well as USB thumb drives, CDs, DVDs, memory cards, complex RAID configurations, tape media and server failures. They realise how important data is and will try every technique available in order to recover it.

Once they have achieved the forensic data recovery, they have an experienced digital investigation team who can undertake an examination of the data and provide you with expert evidence for court. q

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New standard for expert witnesses to aid the courts ‹ COURTS RELY HEAVILY on expert witness evidence and opinion.

To do so they must be able to accept that an expert witness is truly an expert. With oral evidence being given less and less, the only way that the court is able to ascertain the appropriateness of an expert is through his or her curriculum vitae (CV).

Up until now the contents of experts’ CV’s have been varied and sometimes more of a marketing device than something appropriate or useful to the court.

To aid the courts, the judicial committee of The Academy of Experts (TAE), itself comprised of senior judicial figures including Lord Justice Jackson, the author of the Jackson Reforms, has produced a model CV format for expert witnesses.

At its annual lunch and legal update seminar, held at the RAF Club in January, TAE president, Lord Saville of Newdigate (pictured), formally launched the Model Form of Expert Witness CV. The judicial committee, which Lord Saville himself chaired, prepared the Model CV in response to an increasing number of concerns raised by senior judges about the quality and content of CV’s in the reports they were seeing. CV’s are often too long and do not contain information that would assist the courts.

The committee have stated that the hallmarks of a good CV are brevity, clarity and, most importantly, ensuring the information provided is relevant to the case. The CV must demonstrate the expert’s qualification and experience for the case. The Model CV will sit alongside the Model Form of Expert’s Report which is already in widespread use.

Lord Saville said: “In developing the Model Form of Expert Witness CV the Judicial Committee wanted to provide a template. This would ensure that experts, irrespective of their discipline, set out their qualifications and experience relevant to matters on which they are expressing their opinion in a clear and simple format.

“In the same way that the model report format has been widely adopted around the world, we believe that the Model CV could be a new international standard adopted and used by all experts.”

Echoing Lord Saville’s comments at the lunch, Academy chairman Dr Chris McArdle thanked the judicial committee for its hard work in support of TAE. He announced TAE’s intention to introduce further guidance over the coming twelve months to help further improve the standard of expert evidence. q

The Model Form of Expert Witness CV

RSS launches new guide to using statistical evidence ‹ A NEW GUIDE to interpreting statistical evidence in criminal law

cases – jointly written by professors of law, statistics and forensic science – has been launched by the Royal Statistical Society, with free copies being offered to legal professionals.

Case Assessment and Interpretation of Expert Evidence is the last in a series of four practitioner guides under the general title of Communicating and Interpreting Statistical Evidence in the Administration of Criminal Justice. The publications outline best practice for the evaluation and interpretation of evidence in criminal justice, as well as illustrating the common pitfalls those not well-versed in probabilistic reasoning can make.

The series has been written for judges, lawyers, forensic scientists and expert witnesses and produced by the RSS with funding from the Nuffield Foundation. They are authored by Professor Paul Roberts, professor of criminal jurisprudence at the University of Nottingham, alongside Professor Graham Jackson (Abertay University) and Professor Colin Aitken (University of Edinburgh).

The guides include case studies where statistics have been used in

court, including real-life examples of where misunderstood or misleading probabilities have led to unsafe convictions.

The RSS is offering hard copies of the guide free to those in the legal profession, as well as making them available online at no charge at www.rss.org.uk/statsandlaw. Those who wish to be sent a hard copy of the new guide should email rss@rss.org.uk with their contact details and required number of copies. Similar requests for copies of earlier guides are welcome subject to availability.

Commenting on the launch of the new guide, joint author and chairman of the Royal Statistical Society’s Section on Statistics and the Law, Professor Colin Aitken said: “There is a long history of misunderstandings relating to statistical information and probabilistic reasoning which have contributed towards serious miscarriages of justice. It is vital that everybody involved in criminal adjudication is able to deal correctly with these important contributors to the administration of criminal justice.

“The objective of the guides is to equip forensic practitioners to become responsible producers and discerning customers of statistics and confident exponents of elementary probabilistic reasoning.” q www.yourexpertwitness.co.uk

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No address? No problem, we’ll serve the injunction via Twitter ‹ PERHAPS WITH SOME justification,

the rules of court practice and procedure are viewed by many as archaic and not particularly user friendly. However, law firm SGH Martineau, in what many regard as a first, recently sought and obtained permission from the court to serve an injunction on a defendant via Twitter. Could this be a sign that the legal system is starting to embrace the digital world?

A client of the firm’s education team had ejected an undesirable far-right group from one of its campuses and sought to ensure members of the group would face action if they trespassed on the University’s land again.

James Fownes, a lawyer in the property disputes team at SGH Martineau explains: “This objectionable group is targeting higher education establishments and tries to demonstrate on campus and leaflet students, the majority of whom find their behaviour intimidating and threatening.

“On the day in question, the group’s ejection from the campus was professionally managed by the university’s security staff. But, the threat of the group returning on large sprawling or multi-site campuses moved the university to seek an injunction to prevent their return.

“Whilst obtaining the injunction to bar the group and its members from our client’s

campuses was relatively straightforward, serving it on those named within it proved more problematical. This is not a recognised political group with offices and an organised infrastructure. Whilst the group is sufficiently constituted to be capable of being sued, they chiefly use social media to organise their protests, spread their message and highlight their activities.

“At the ‘hearing without notice’, we quickly raised the issue of not having an address at which papers could be served. As the group promotes its activities primarily on Twitter, we asked if we could serve the papers via Twitter, or at least tweet a link, advising the account administrator that an injunction had been obtained and they could read the details

by clicking the link – a very modern, digital approach for the legal profession, which is often accused of being more analogue than digital.

“Interestingly the judge demonstrated a real understanding of the problems of the digital, virtual world. He not only granted our request to serve papers via Twitter, but granted a further injunction against one of the defendants which compelled him to procure that the group’s offshore web hosting company posted the original injunction on the group’s website.

“This interesting twist ensured we actually served two different injunctions; one telling the group and its members what they cannot do and conversely one telling them something they had to, which in my experience is quite unusual in this context.

“Whilst social media is constantly in the news for tweets or postings that have sparked legal action, on this occasion Twitter proved a useful and appropriate tool to prevent illegal activity.

“As more of the world’s communication is undertaken digitally, with hackers, criminals and activists living and ‘working’ without necessarily having an established location in the real ‘bricks and mortar’ world, I expect more legal work to use social media to serve injunctions and other court papers in the future.” q

DMH Stallard wins ‘landmark ruling’ on village green appeal to Supreme Court ‹ THE HEAD OF law firm DMH Stallard’s planning team has

described the decision by the Supreme Court to overturn the village green status on a beach within the Port of Newhaven, as a ‘landmark ruling that will support the positive development of any land held by public or statutory bodies for statutory purposes’.

Head of planning at DMH Stallard, Heidi Copland (pictured), who acted for Newhaven Port and Properties Limited, said: “We successfully argued that a beach within the Port of Newhaven was wrongly registered as a village green by East Sussex County Council.

“The decision takes a common sense approach to the application of village green law which will have implications not only for our client, but other port and statutory bodies.”

In December 2008 Newhaven Town Council applied to East Sussex County Council (ESCC) to register the beach as a town or village green on the basis that it had been used by a significant number of local inhabitants ‘as of right’ for a period of at least 20 years.

Having been registered by ESCC, the area could be used for public recreation and any interference with this by the Port for its own purposes, including future development, would have constituted a criminal offence.

Heidi said: “The five Supreme Court Justices unanimously upheld our appeal, agreeing that registration of the beach as a village green was incompatible with the statutory purposes for which the land within the port was held – that is its use as a working harbour.”

Lord Neuberger, Lady Hale, Lord Sumption, Lord Carnwarth and Lord Hodge also held that it was implicit from the byelaws in place that members of the public had permission to use the beach for recreational purposes, whether or not the public were aware of these byelaws. This meant that their claim that their use was ‘as of right’ failed.

Heidi added: “In the absence of this decision, parts of the English coastline, specifically those parts owned by ports, which play significant roles in economic growth and regeneration, were potentially constrained, such as to interfere with the ports ability to effectively run its undertaking.

“Most importantly, it represents a landmark ruling that will have implications for all public authorities and statutory undertakers who hold land for statutory purposes and will protect their rights to use and develop this land” q www.yourexpertwitness.co.uk

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International construction conference moves to Bogota ‹ THE International Chamber of Commerce

(ICC) and the International Federation of Consulting Engineers (FIDIC) will join forces again this year for the Conference on International Construction Contracts and Dispute Resolution on 24-25 March in Bogota.

The event will unite some of the world's leading construction practitioners.

Moving from region to region every year, the two-day conference will return to Latin America and bring together internationally renowned engineers, construction arbitration specialists and in-house lawyers of leading companies in the field. Participants will share their practical experience and knowledge on FIDIC contracts and related procedures for claims and disputes, dispute boards and ICC arbitration in construction cases.

Christopher Seppala, co-chair of the event and a partner at White & Case LLP in France, is vice president emeritus of the ICC International Court of Arbitration and legal advisor to the FIDIC contracts committee.

He said: “ICC is the leading organisation for dispute resolution worldwide and has extensive experience in construction disputes, especially those involving FIDIC contracts.

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“This joint initiative with FIDIC, the recognised international authority on issues relating to consulting engineering best practice, allows both of these internationally-renowned organisations to unite members from their respective networks during a high-level conference on construction and dispute resolution.”

Fernando Mantilla-Serrano, co-chair of the event and a partner at Latham & Watkins in France, is the member for Colombia at the ICC International Court of Arbitration. He will deliver a presentation on the ICC International Court of Arbitration, including an introduction to the 2012 ICC Rules and the ICC International Centre for ADR. Mr Mantilla-Serrano said: “By hosting this conference every year in a different region, FIDIC and ICC recognise that different cultural and legal backgrounds impact construction disputes under FIDIC contracts in many ways.

“This event is an opportunity to gather some of the world-renowned engineers and construction arbitration experts from all over the world to get some multi-perspective insight into the particularities of international construction dispute resolution.”

Among the topics to be covered at the conference will be: • Comparison between FIDIC contracts and • regional model contracts • Advantages of dispute adjudication boards • in international projects • Complex jurisdictional issues in construction • arbitration • Case management techniques in • construction arbitration • Claims management in construction projects Sessions will take place in English and Spanish with simultaneous translation. R

How to save your clients time and money

a surveyor’s perspective on matrimonial disputes MALCOLM KEMPTON is a Chartered Surveyor and Valuer for London and Thames Valley property consultants, Kempton Carr Croft.

He has over 30 years’ experience in conducting property and land valuations for sales, secured lending and development viability as well as acting as an expert witness for dispute resolution.

Here, Malcolm offers his perspective on valuation for matrimonial disputes when property assets need to be divided.

‹ RAISING CHILDREN, renovating,

decorating and sharing a space with somebody on a daily basis means that the marital home inevitably ends up swathed in emotional connections and memories. It can ultimately become a symbol of the past, present and future for its owners. It’s no wonder then, that when things go wrong and divorce is the only solution, it can be tough for both parties to look at this asset in the clear and business-like manner required to fairly divide its value without conflict.

In my experience, more often than not, a divorcing couple will not be able to agree on the value of their home. This is understandable seeing as they will usually have opposing interests in that value. If, for example, one partner wants to stay in the house whilst the other moves out, the party who stays will tend to buy out the other and would naturally prefer a lower valuation. The party moving out will want to release their money as soon as possible to secure new accommodation and it is in their interests to get the highest value possible.

As valuations are conducted by independent experts who can’t be swayed by memories, nostalgia or heartbreak, their reports can only be based on market evidence and a professional opinion. As valuers are often called as expert witnesses relating to property value disputes in court, they need to be able to defend every line of their report should it ever be questioned. For this reason, a RICS registered valuer, who is governed by strict compliance and regulatory guidelines, will ensure a smooth division of assets at a fair and accurate current market price for both parties without the need for court proceedings.

Asking estate agents to value the property in the first instance to avoid valuation costs is, in my opinion, stoking the fire. If you ask

three estate agents to value a property you will receive three wildly different opinions, due again to conflicting objectives. If one agent thinks the valuation is a pre-requisite to them marketing the property, the initial valuation figure will likely be inflated then whittled down to a more realistic selling price once they have been instructed. If they don’t like the area or it is out of their way, they may provide a low valuation, and so on. Adding more conflicting information to an already heated debate is unlikely to resolve the dispute any more quickly.

When you have clients who can’t agree on the value of a property, I would recommend that solicitors acting for both sides instruct a single joint expert in the first instance. There is no point in either side getting their own valuation done, as the other side will likely dispute it. So for the sake of all involved, don’t wait until estate agents have had a go, disputes have escalated and legal costs have risen even further. Get the right professional on the job from the start.

A valuer instructed as a single joint expert will act impartially. With half the fee coming from each side, there is no bias, no previous contact with either party and no carrot of winning a listing. Registered valuers have to adhere to strict valuation codes and practices.

When hiring the most suitable valuer, solicitors should consider the location of the firm in relation to the property, its experience in valuing properties of a similar size, age and specification, and the individual valuer’s experience. Multi-disciplined firms with large valuation teams will likely have experts that specialise in a wide variety of property types.

The solicitor will then be able to reassure the couple that the valuation will be an accurate reflection of the current market place, based on evidence and a presentation

of the facts. This means both sides can accept the valuation as the impartial opinion it is.

If both parties get their own reports, they will again be different, and the matter is likely to end up in court. A judge would then issue a court order for an independent valuer to act as a joint single expert. If a valuer is instructed this way, a civil procedure rules (CPR) compliant report is much more complex and time consuming to put together than a standard valuation report. The end valuation will be the same but the way this has to be presented and defended is much more complex. This route will generate much higher costs for the couple than if they had appointed a single joint expert themselves in the first place.

Court appearances are stressful for all involved and the burden of proof required to support a valuation is high. Experienced valuers will always assume that they may end up having to defend their position in court. This will result in a report that is robust enough for them to defend every single line in court, should the need arise. The message for valuers is clear – don’t try and defend what you can’t defend.

In summary, I would always recommend appointing an experienced valuer as a single joint expert to value shared property assets as early in divorce proceedings as possible.

This will save unnecessary time, expense and conflict. With less disputes come fewer legal costs, which ultimately means there will be more money left in the pot to be divided between the couple upon resolution. q • Kempton Carr Croft is a multi-disciplined firm offering independent expertise, advice and services relating to commercial and residential property and land. Visit the website www.kemptoncarr.co.uk or call 01628 771221. www.yourexpertwitness.co.uk

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Government ‘in denial’ over language services report, say interpreters ‹ THE GOVERNMENT HAS come under fire from bodies

repeated in any new arrangement which follows.”

Paul Wilson, chief executive of the Institute of Translation and Interpreting, said: “The Government response shows they really don’t care very much that their contractor Capita is using thousands of unqualified linguists in courts and that there are no

“

representing interpreters for its response to the Independent Review of Quality Arrangements under the MoJ Language Services Framework Agreement.

Alan Thompson, chairman of the Association of Police and Court Interpreters (APCI), is quoted as saying: “The government is showing that it is still wholly complacent about the catastrophic decline in quality standards in interpreting since this multi-million pound contract was implemented. The recommendations of this review, which does contain some very good ideas, need to be addressed.”

The independent review, undertaken by consultants Optimity Matrix, made a number of recommendations regarding quality standards and the way interpreters are allocated jobs.

According to reports by a number of bodies, the Government response states it does not accept three of the five recommendations. The Institute of Translation and Interpreting described the Government as being ‘in denial’ over the report.

Ann Carlisle, chief executive of the Chartered Institute of Linguists, said: “The Government needs to act fast and show genuine intent that it is keen to gain the buy-in of the professional interpreter organisations. The Framework Agreement is nearing the end of its term and none of us wants to see the same mistakes

The government is showing that it is still wholly complacent about the catastrophic decline in quality standards in interpreting since this multi-million pound contract was implemented.

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Alan Thompson, chairman of the Association of Police and Court Interpreters (APCI)

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checks being made on the hundreds of unvetted sub-contracted language agencies Capita is using because it can’t fulfil the jobs itself.”

Installing an independent regulator to monitor the contract was not within the scope of the review, which nevertheless made an ‘observation’ that the National Register of Public Service Interpreters (NRPSI) be given a role in setting standards and monitoring compliance. The Ministry of Justice says it fully supports this observation and is keen to engage with professional interpreter organisations and with the NRPSI. In 2012 the Ministry of Justice was described as ‘not an intelligent customer’ by the Public Accounts Committee chair Margaret Hodge.

A succession of independent inquiries by the National Audit Office, Public Accounts Committee (who reviewed the contract again in early 2014) and the Justice Select Committee recommended that the independent review should be undertaken.

Publishing the report and its response, the MoJ stated: “The Ministry of Justice accepted recommendations made by the Public Accounts Committee, the Justice Committee and the National Audit Office to review the quality of interpretation services under the Language Services Framework Agreement.”

In its response the MoJ commented: “We fully support the observation that regulation of the interpreter profession is a positive step. In the longer term, it could potentially aid delivery of tangible benefits to the industry as a whole, not just the justice sector.

“We share the viewpoint of the review that external organisations are best placed to undertake this role and although this is not within the Ministry’s remit, we are keen to engage with professional interpreter organisations and with NRPSI to see how we can use their expertise on the potential development of a regulatory framework.” q

Capita ordered to pay costs to county council ‹ THE PRESIDENT OF the Family Division of the High Court

has ordered Capita Translation and Interpreting to pay Kent County Council £15,927.36 (including VAT) in costs in relation to its repeated failure to provide a Slovak interpreter in family proceedings.

In a damning judgment, Sir James Munby found that there had been: “…serial failures by Capita in this case against a background of wider systemic problems. These were not minor but extensive and, at two different stages of the litigation, they had a profound effect on the conduct of the proceedings.”

A report by the Association of Costs Lawyers pointed out that Sir James had emphasised that he had reached his decision on the particular facts.

“I am not to be understood as suggesting that Capita will be liable for each and every failure to provide an interpreter,” he said, continuing: “Nor should it be assumed that a similar liability will extend to other private-sector contractors whose failures can impact adversely upon the court sitting-day – for example, the companies responsible for producing prisoners at court or the companies responsible for the maintenance of court buildings.

“Much may turn on the precise term of the agreements under which they operate, of which I know nothing and which may, for all I know, be very significantly and materially different from Capita’s agreement with the Secretary of State.”

Alan Thompson, chairman of the Association of Police and Court Interpreters, said: “We always knew that Capita TI, formerly Applied Language Solutions, would never be able to deliver on this flawed contract, and the Ministry of Justice was naïve in the extreme to believe that they could. I would be rejoicing today were it not for the fact that many talented individuals, some with decades of experience, have lost their livelihoods due to the misguided actions of the MoJ.” q

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How my expert evidence assisted the court in a case of murder or manslaughter

By DR BASHIR QURESHI FRCGP, FRCPCH, FFSRH-RCOG, AFOMRCP, Hon MAPHA, Hon FRSPH • Expert Witness in Cultural, Religious & Ethnic issues in Litigation • Expert Witness in GP Clinical Negligence.

‹ NOT SO LONG AGO, I gave evidence in Birmingham Crown Court

as a Single Joint Expert. A British African Muslim couple were accused of killing their 5 year-old daughter by starvation and sessional beatings.

It was alleged that sometimes she even had to eat her food from the same plate as her two siblings who were from her mother’s current marriage.

The girl in question was the mother’s daughter from a previous marriage to a British Arab Muslim – he was present in the court and looked very angry. I was allowed 15 minutes to explain the religious issue of ‘Possession by Jinn (bad spirit)’ and another 15 minutes to explain the religious and cultural issue of ‘Feeding three siblings from one big plate’ which was considered as child abuse. The press reporters present were forbidden to report my evidence, perhaps to avoid any possible religious controversies in this sensitive area.

I am the only expert witness in cultural, religious and ethnic issues in litigation in the UK and cover all cultures, religions and ethnicities or races. My experience evidence is based on my background as a medical doctor, author, journalist, guest broadcaster and politician as well as on acting as an expert witness in London for over 51 years since 1964. This experience was backed up by my research evidence relevant to this case.

I explained to the court that the concept of a holy spirit or Jinn and evil eye had its origins in Judaism. Thereafter, it was taken up by Christianity as a holy ghost or holy spirit and possession by a bad spirit or bad ghost which had to be dealt with by exorcism. These concepts were expanded in Islam and one of the 30 chapters in the Holy Quran is devoted to Jinn. Devoted religious people have deeper beliefs than liberals and seculars. Agnostics are, of course, not sure but atheists do not believe in these concepts. Psychiatrists consider them as hallucinations, illusions and delusions.

I also explained that to ‘feed siblings from one plate’ is only a custom of Hinduism. The aim is to create bonding amongst them for survival together. The physical and financial care of a sister is the responsibility of her brother for life. Each year, a sister binds a bonding ribbon, called Rakhi, on her brother’s upper arm to refresh the bonding. Culturally, this custom spread to Africa and the Middle East but never to Europe, the USA or Australia.

I amusingly told my own story, from when I was in India, of sharing food with my sister from one plate. I had asked her what she had done at school that day, and when she had finished her story, I finished the food. I had been given firm advice by my mother to behave and to look after my sister forever. I never ate anyone else’s food again. The Judge and Jury were covering their smiling faces with their hands – I kept my face serious, being aware that laughing is contempt of court!

Under Article 9 of the Human Rights Act, everyone has freedom of thought, conscience and religion. Under Article 8, everyone has a right to respect private and family life. Under Article 6, we all have the right to a fair trial. Moreover, justice should be done and seen to be done and all judges must consider these issues. Some judges in the Civil, Family and Criminal Courts have thanked me for my help – this makes me feel rewarded and wanting to help more. q

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The BS5837:2012 Tree Report and the role of the arboricultural consultant within the planning process

By MARK CHESTER of Cedarwood Tree Care

‹ I HAVE RECENTLY subjected the BS5837:2012 Tree Reports

that I write to an audit of peer review to ensure a high standard. I spoke with other authors of these reports to see how they approach the process, individuals with considerable experience. One spoke of the purpose for writing such a report and pondered on the ultimate role of the document. The suggestion was that it is to gain planning permission for the applicant, who is usually also the consultant’s client, possibly exploring a range of options until consent is granted.

I am not sure that I agree with this perspective. I have been involved in the planning process for more than a decade now, initially as a tree officer in a planning department and more recently as an independent consultant. My approach has always been to try to work with applicants to achieve their desired outcome wherever this is feasible. However, I have seen my role as advisory and I do have to be the bearer of unwanted news on rare occasions. If the proposal is not feasible, whilst I am happy to guide clients on alternatives, it is not my role to make it feasible.

It is not uncommon to be presented with a site where the proposal cannot proceed without the removal of trees, some (or all) of which may not actually be worth retaining. However, I have been presented with proposals where the trees concerned were not on land owned by the applicant, who had not fully appreciated the implications.

In such situations, I start with the feasibility assessment, and if the applicant cannot arrange for the removal of these trees, then regardless of the merits of the application, progress is likely to be thwarted.

I see my role as being to inform and guide. This includes ensuring the applicant is aware of any problems and challenges which could affect the application. Sometimes, this involves conveying unfortunate news. I was once asked by an architect to survey a site.

The architect explained to me that there was an important tree on the site – it had ecological value and was being retained, with the development designed around it. I was provided with a topographical survey, showing the important tree and details of the plans.

Visiting the site, I realised that where the important tree had been plotted (with the development designed around it) was actually a small self-set sycamore, whilst a distance away was a large, mature horse chestnut in its latter years, with evident ecological value.

Its substantial size required a considerable root protection area, which was additionally important due to the age and condition of the specimen. The tree needed space to survive a development.

The problem was that the site entrance was passing within the root protection area of this valued veteran tree. It was not possible to retain the tree and proceed with the development as planned and so a radical redesign was needed.

I seek to overcome problems wherever possible. This can surprise clients who may not have encountered some of the solutions. Minimum-dig driveways can allow access to a site which was previously considered impractical. Pile-driving can enable foundations to be constructed in the vicinity of roots. Where space is limited, internal scaffolding can create extra room outside for tree protection, avoiding construction traffic.

I work with local authority officials to seek resolutions that are reasonable and realistic, and guide applicants on informed implementation. I have seen applicants, who were presented with a list of a dozen native species of trees and hedging plants for use in a landscaping scheme, trying to use all of the plants listed, where

this was not the intention of the local authority. I have been there to pick up the pieces with an unsuccessful application, and even a dismissed appeal, where reports and proposals were limited and required improving with more detail.

My experience in the nursery industry enables me to guide clients on how to efficiently and effectively specify trees for use in landscaping – large, costly trees providing instant maturity are not always appropriate. It is also important to avoid creating future problems with inappropriate planting, for example a small fruiting tree situated by a footpath may soon become unpopular as crushed fruit is walked across new carpets.

So, is the role of the report, and the consultant, to represent the interests of the trees, the applicant or to inform the planning process? Could it be a combination of these elements? There is also the end user, who is not always considered but is of great importance.

As a tree officer, I recall one developer proudly presenting a proposed development where the prominent tree had been retained with the space as recommended in the British Standard, which was approved – I wasn’t consulted as all the boxes had been ticked.

However, the developer hadn’t considered whether someone would be happy to pay a substantial sum for a property with the rear garden dominated by a substantial tree. I recall a discount being required to ensure the sale and a request to fell the tree from the resident soon followed.

In another case, properties were designed around trees being retained. However, the trees had not been properly measured and needed more space. There was the risk of trees dying in the years following development, leaving properties with a strange design.

A more sensitive re-design enabled a sustainable development to proceed.

I see the role of the report as informing the process of planning and, via the method statement, explaining to the applicant how they are to protect retained trees or justifying trees not being retained. One is sometimes the bearer of disappointing news, where a development may not be feasible. It is rare that a site cannot accommodate any development and, where possible, I seek to guide parties throughout on possible solutions. However, whether permission is granted, or not, is outside my role. q

www.yourexpertwitness.co.uk

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Why to and when to use veterinary consultants

By PAUL ROGER of Veterinary Consultancy Services

‹ AS VETERINARY CONSULTANTS

we are approached because we can offer advice, guidance and interpretation on a range of issues which, by dint of our experience, training and qualifications, cannot be found elsewhere.

Our expertise is across a wide base of knowledge but, as all experts will attest, the more that is known about any defined area will tend to highlight the patches in that knowledge and fulfil the dictum about the expert ‘knowing more and more about less and less’.

It is imperative that the boundaries of knowledge are recognised and this is where there is great strength in having a built-in peer review process through a board structure to provide validated reports.

This is a luxury the single independent expert cannot provide and is invaluable in providing a benchmark of quality control in commissioned reports.

Over a year ago, we started this series of articles to explain the potential use of veterinary expertise in areas outside that of the Heriot style rural idyll, coupled with anthropomorphic visions of animal happiness and our right to own and treat animals.

This column has been directed at informing those outside our profession of the advantages of using veterinary expertise which starts from the wide knowledge base gained in basic training and continues to clinical research and post-graduate qualifications.

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Even as the articles have been written, there have been changes in the way disease threats are seen – not just in the UK but also in the EU and globally, including the changing epidemiological picture of Schmallenberg Virus (SBV) in the UK and the different emerging strains of Blue Tongue Virus (BTV) across the EU, meaning that as BTV8 has retreated and is no longer present in the EU, the threat BTV4 poses has crept closer to our borders.

Also Peste des petits ruminants (PPR) has been identified on the borders of the EU and is another new potential threat to our livestock.

Whilst we always have the threat of imported disease, for example from Rabies (viral), Leishmaniasis (bacterial) or Echinococus granulosus (parasitic) infections, perhaps the status of these threats has been best brought to public awareness through the impact and spread of the Ebola virus. This has raised levels of concern regarding the importance of global intelligence, surveillance and cooperation against disease spread. There is a particular need to ensure the veterinary surveillance system of disease detection and prevention in the UK is robust enough to spot the next emerging threat in time to take action and prevent another Bovine Spongiform Encephalopathy (BSE) crisis.

There have also been changes in our approach to aspects of farm animal welfare and the understanding of the duties that we

owe both to those animals we keep and to wild animal species and their control.

Examples include our approach to disease vectors and other species implicated in disease spread such as the badger and its link with Bovine tuberculosis and the control of this species compared to that of rats or rabbits in the UK or of wolves further afield. Ethical analysis of these approaches relies on an informed scientific understanding of the diseases as well as the natural behaviour of the species and an appreciation of their particular needs.

At this time of year even the weather gets involved in the way we interact with animals, making some of our decisions critical for their quality of life. So when the snow looks set to hit, we shouldn’t forget about small furry pets such as rabbits and guinea pigs who are vulnerable to the cold and damp despite their fur coats. Although wild rabbits live in burrows underground, the temperature there is relatively constant and the animal is well-sheltered.

Simple measures such as making sure that their homes are at least four inches off the ground and are waterproof, draughtproof, damp-proof, dry and ventilated, as well as escape-proof and predator-proof, help to meet their basic needs. The home should be kept between 5 - 20ºC for rabbits (the lower temperature assumes rabbits are healthy and kept with other rabbits, with lots of bedding for warmth) and between 15 - 20ºC for guinea pigs.

Avoiding too many fluctuations in temperature for both rabbits and guinea pigs is ideal. A regular check should be made for water marks or other signs of damage and to make certain water is not getting into a hutch and run. For water bottles and bowls, a twice daily check to make sure water is accessible and not frozen is essential. As is ensuring your pets have extra bedding to keep warm during a cold snap and placing the home in a sheltered position, away from wind, rain and snow.

Simple additions such as lining hutches with plenty of newspaper and hay and covering with an old duvet, blanket or tarpaulin help to insulate the living spaces. Finally, the best answer may be to consider moving outdoor pets inside to a well-ventilated space with light and room to exercise during severe weather – but never place in a garage which is in use as vehicle exhaust fumes are harmful.

These simple ideas reflect the type of advice all veterinary surgeons regularly give to their clients, but there are wider applications of veterinary knowledge and some of these ideas are outlined below.

We have seen regulations change with regard to identification of dogs and there are possible implications if these regulations are not rolled out across the

whole of the UK. This is demonstrated by the intended introduction of compulsory micro-chipping of all dogs in England, and probably Wales, in 2016. The Scottish devolved authority has yet to pronounce on this issue.

Engaging with issues that affect public health, or have the potential to do so, includes the developing understanding of the ‘One Health’ concept promoted by the World Health Organisation and its equivalent for animals, the Organisation Internationale des Epizooties.

These areas necessitate continual review of our understanding and application of veterinary knowledge.

A further complication is that sometimes zoonotic (infections that can pass from vertebrate animals to man) opportunities arise for the infections we deal with. For example, an opportunist infection of the skin in Methicillin resistant Staphylococcus aureus (MRSA) colonised animals. This is a recognised occurrence but does not, in itself, imply that LA(Livestock Associated)MRSA has greater infectivity.

It is also worth noting that whilst antimicrobial use has played a role in the emergence of MRSA, its subsequent spread relates mainly to it being a successful bacterial species and not to antimicrobial use. LA-MRSA has been found in animals in which no antimicrobials have been used. Public Health England advises that LA-MRSA represents a very low risk to public health. This type of MRSA rarely causes disease in people.

Veterinary surgeons are actively concerned with antimicrobial resistance across the majority of species, including humans. The UK 5-year Antimicrobial Resistance Strategy (2013-2018) and the ‘One Health’ approach of medical and veterinary professionals working together are crucial to our future.

On a different level, the growing public concern over welfare at slaughter may lead to an end to non-stun slaughter – but this should only be after a fully informed and science based debate and not be imposed purely through force of numbers.

Safe, secure and sustainable animal use provides a focus for all our efforts – whether this is for the supply of food, facilities, fabrics, research, companionship or sport and we welcome the opportunity this gives us to offer our services in exploring this exciting arena.

As a consultancy, we embrace a working partnership with all those involved in agriculture, in banking and insurance, in business, in government and within the scientific community and the veterinary profession. We recognise the unique skills, knowledge and expertise that each discipline brings and look forward to crafting our services to provide deliverable outcomes for the many facets of agricultural and veterinary endeavour that we embrace.

This last year has been a busy one for all of us. We have been involved in issues ranging across court work, alternative dispute resolution, livestock liability assessment, research funding applications, development and delivery of CPD, insurance claims and premium setting and whole farm planning – as well as continuing in our independent roles across the veterinary spectrum.

If you think we may be able to help you, please contact us to discuss your problem in confidence and with confidence. q

www.yourexpertwitness.co.uk

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Legacies In the last issue of Your Expert Witness we looked at the growing importance of legacy giving to the work of charities. Now, with the British Red Cross screening a groundbreaking TV advert aimed at the sector, we look at trends in giving, as well as developments in will-writing and charity legislation.

Legacy giving on the rise ‹ THE PERCENTAGE OF the public who claim to have left a charitable

gift in their will is at its highest level since 2010, according to new research published by campaigning organisation Remember A Charity.

The survey of more than 1,000 people shows that 17% claimed to have left a charitable gift in their will, an increase from 12% in 2010 and 14% in 2013. It is the highest level since Remember A Charity began monitoring public attitudes to legacy giving.

The research, carried out by nfpSynergy, also shows that 64% of those surveyed claimed they had written a will, however 26% of those admitted that it needed to be updated.

The report also reveals that only 11% of the UK population now say that they have ‘never thought about’ legacy giving, compared with 21% in 2010.

Rob Cope, director of Remember A Charity, said: “Historically, there has been a large disconnect between those who say they’d be happy to leave a gift in their will and those who do it.

Wills now available online ‹ IN JANUARY THE government’s archive of 41 million wills

was made available to the public through a new online database.

The public are now able to search for the wills of influential historical figures such as Charles Dickens, Sir Winston Churchill and Beatrix Potter, in an archive dating back to 1858.

The move forms part of a project carried out by HM Courts and Tribunals Service and storage and information management company Iron Mountain, in an effort to open up public services.

People can carry out research into their family histories from the comfort of their own home, eliminating the need to visit the probate registry to search the archives.

Courts Minister Shailesh Vara said: “This fascinating project provides us with insights into the ordinary and extraordinary people who helped shape this country, and the rest of the world. It is a fantastic resource not only for family historians but also for anyone with an interest in social history or famous figures.”

Since the first phase of opening up the archive of soldiers’ wills in 2013 there have been 2 million searches online, demonstrating the public’s great interest in family history.

With copies of requested wills available in electronic format within 10 working days, the archive aims to provide a flexible and efficient service for users. R

“These latest results show that significant progress has been made towards closing this gap between intention and action, but with so many charities heavily reliant on legacy income there is still more work to be done to make legacy giving the social norm.”

Remember A Charity is a consortium of over 140 charities. Its aim is to change the perceptions and perspectives of the nation towards charitable legacies so that, over time, legacy giving becomes the norm for the many, rather than just the few – something that no single charity has ever been able to achieve on its own.

The consortium focuses on four key areas: • Raising awareness and relevance among the will-writing public.

• Making charitable prompting the standard practice among solicitors and • will-writers.

• Influencing a climate for successful charitable will-giving by working in • partnership with individuals, government and private sector • organisations.

• Helping the charity sector to become more effective at promoting gifts • in wills.

According to the organisation: “Solicitors and will-writers can play a key role in helping clients understand all the options open to them when writing their will. Of course, family and friends must come first. But by simply mentioning the option of supporting their favourite charities, more clients will consider supporting good causes in their will.” R

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Vital help for victims and witnesses ‹ WHEN SHEILA AND TREVOR Fairhurst lost their daughter,

Carly, they despaired of ever being able to come to terms with the loss. Carly was just 19 when she was knocked unconscious by her boyfriend during a row and died in hospital six days later.

Following the incident, Victim Support got in touch to help Trevor and Shelia recover from the ordeal by offering practical and emotional support.

“I knew that we weren’t on our own,” said Trevor. “Sheila had a year of counselling sessions, sometimes three times a week. That helped her to cope with the terrible emotions of losing our daughter in such dreadful circumstances and see that she had reasons to carry on.

“Victim Support has been a godsend to us. Nothing can take away the pain of losing our daughter, but the charity has helped us to learn to live with it.”

Victim Support is an independent charity for victims and witnesses of crime in England and Wales. Last year they offered support to more than one million victims of crime and helped more than 198,000 people as they gave evidence at criminal trials through their Witness Service.

Victim Support will help anyone affected by crime – not only the victims and witnesses, but also their friends and families. This is a service that is crucial to helping people cope and come to terms with the after effects of a crime. q

Supporting service veterans

‹ FOUNDED IN 1920 for the ‘comfort, cheer and entertainment’ of

servicemen wounded in WWI, The Not Forgotten Association (NFA) continues to provide support to serving and ex-service men and women of all ages.

Anyone who has served in any of the armed services, regular or reserve, may be eligible for the charity’s help. Their beneficiaries are serving personnel who are wounded, injured or sick and veterans with disabilities or illnesses, irrespective of whether their health problems arose during service or subsequently.

Through its unique programme of holidays, outings, concerts, events, Royal Parties and the provision of televisions and TV licences, the NFA brings hope, happiness and friendship to thousands of men and women each year. The breadth of their support is summed up in their motto: ‘From Comradeship To Challenge’.

As a small charity, without the resources for formal fundraising, the NFA relies totally on the goodwill and generosity of those who recognise the value of its work. It is hugely appreciative of the donations, legacies and fundraising money it receives from individuals, associations and trusts as well as the support of those who volunteer their time to support its charitable activities. q • For more information visit www.nfassociation.org.

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New SORPs will ensure highest standards ‹ THIS YEAR A new Statement of Recommended Practice (SORP) for charities to use for financial reporting has been introduced. In fact, there are now two SORPs in operation, FRSSE and FRS 102, depending on which is most appropriate for individual charities.

The SORPs were published by the Chartered Institute of Public Finance and Accountancy (CIPFA), which was appointed in the summer by the Charities Commission and the Office of the Scottish Charity Regulator (OSCR) take on the task of supporting the updates.

CIPFA chief executive Rob Whiteman said that, as the institute itself was a registered charity, it placed the highest priority on promoting the public interest.

The SORPs ensure that charities adhere to the highest standards of financial reporting – an essential element in maintaining trust when bequests or donations are being considered.

Rob Whiteman continued: “This is a great opportunity for CIPFA to use its financial expertise and experience to further develop financial assurance and probity in the third sector and to provide advice and guidance on accounting best practice.”

The Charity Commission and OSCR continue to be the SORP-making body as recognised by the Financial Reporting Council and appointed a new committee in December.

This is the first time two related SORPs have co-existed. The innovation stems from changes to mainstream reporting. The website of the committee, www.charitysorp.org, explained the change.

“Since the last SORP was issued in 2005 there has been a fundamental change in UK-Irish Generally Accepted Accounting Practice (GAAP). From 1 January 2015 GAAP will be more closely aligned with international financial reporting standards. To ease the change for small companies and organisations, the Financial Reporting Council has retained old style GAAP in the form of the Financial Reporting Standard for Smaller Entities (FRSSE).

“The FRSSE is very different to the new GAAP Financial Reporting Standard applicable in the UK and Republic of Ireland (FRS 102). The FRSSE differs from FRS 102 in the terminology it uses, in a number of accounting treatments for items and transactions and with regard to the amount and nature of information which must be disclosed in the notes to the accounts (termed financial statements in FRS 102). The differences are sufficiently great as to require a Charities SORP to apply each accounting standard, so there is a choice to be made between the FRSSE SORP and FRS 102 SORP.” R

Helping young people with cancer ‹ THE YOUTH CANCER TRUST provides free activity holidays all

year round for 250 teenagers and young adults (aged 14 to 30) with cancer from the UK and Ireland.

Cancer can tear your world apart and, at an age where everyone else seems to be moving on with their lives, university, relationships and careers, the diagnosis of cancer can bring all of that to a halt.

The Youth Cancer Trust helps reduce the sense of loneliness, which often accompanies long stays in hospital and time off school. Long term friendships are formed. Families are given a much deserved break knowing their child is having fun and being looked after.

The activities provided on a holiday range from horse riding, water sports and dry slope skiing. The emphasis is on fun and relaxation.

The Charity receives no government funding and relies entirely on legacies to help support the needs of young cancer patients. R • For more information visit www.youthcancertrust.org. www.yourexpertwitness.co.uk

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‹ A REPORT FROM the Law Society has highlighted the importance of

ensuring that a will not only states who should benefit, but what has actually been left behind and where to find it in the modern digital age.

People should leave clear instructions about what should happen to their social media, computer games and other online accounts after their death, the society says, referring to it as a ‘digital legacy’.

“Having a list of all your online accounts, such as email, banking, investments and social networking sites will make it easier for family members to piece together your digital legacy, adhere to your wishes and could save time and money,” according to the release.

Gary Rycroft, a member of the Law Society Wills and Equity Committee, said people should not assume family members know where to look online and should make details of their digital life absolutely clear.

“If you have a Twitter account, your family may want it deactivated and if you have left clear instructions it will be easier for your executors to have it closed. If you have an online bank account, your executors will be able to close it down and claim the money on behalf of your estate.

“This is recognised in the Law Society's Wills and Inheritance Quality Scheme Protocol, which recommends completion and maintenance of a Personal Assets Log, including digital assets and consideration of how to ensure that those dealing with the estate will be able to access those assets.

“This is preferable to leaving a list of passwords or PINs as an executor accessing your account with these details could be committing a criminal offence under the Computer Misuse Act 1990. It is enough to leave a list of online accounts and ensure this is kept current.”

Law Society president Nicholas Fluck added: “As technology has evolved, so has the way we store information. Simple things such as photographs, which in the past we could have flicked through in a printed album, are now stored online. By making our wishes clear now, it will be easier for loved ones to recover pictures to cherish and will help with the more practical issues such as online bank accounts.”

The Law Society has also now accredited the first group of law firms to its new Wills and Inheritance Quality Scheme. It is the first recognised quality standard for wills and estate administration in England and Wales. q

Removing the stigma of mental illness Many people will experience mental illness at some point in their life, and a range of national charities play a crucial role in improving care and helping people recover. But the stigma around mental health is still preventing people raising it as a topic when they are considering beneficiaries in their will. So how can you help clients discuss it openly? DANIEL WALSHE from the charity Rethink Mental Illness considers the challenge.

‹ THE EMOTIONAL PULL of a charity is often extremely strong

and linked to personal experience. One in four people will experience mental health issues in their lifetime. It always amazes me to see the bond our supporters have between what we do and how they can help when they leave us a gift in their will.

It’s a major commitment which supports the help we provide to one of the most stigmatised groups in society. Solicitors who prompt their clients to remember leaving a gift to charity will invariably lead the person to think about what matters most to them in life.

When writing a will, the priority for most people will always be to take care of their family, friends and other loved ones. It’s at this point that more people are considering leaving a gift to a charity which they have a personal connection to. According to research by Smee and Ford the proportion of gifts in wills had risen to 7.3% in 2013.

Gifts in wills are one of the most important ways people can show their support for a charitable cause. Although the numbers are rising, it’s often an opportunity which is overlooked. All too often it’s simply a case of solicitors’ clients not realising this is an option.

This is where the legal profession can play a vital role. Strict rules prevent solicitors from suggesting a client should leave specific gifts

in their will. However, Remember A Charity’s 2013 research, in conjunction with the Cabinet Office, showed that three times as many Britons would, if reminded by their solicitor, leave a gift in their will to a charity they feel close to.

So, when discussing the composition of a will with a client, simply reminding them that they might want to think about a cause or causes which mean a lot to them is a good first step.

The sad fact is that people with severe mental illness die, on average, 20 years earlier than the rest of the population and are often dependent on family members as long term carers. So, clients with mental illness in the family may be thinking about how they will support a loved one after they die, and if the subject of mental illness does crop up, be prepared to talk about it openly. It may be a difficult topic for your client too, at first, but our experience shows that once its in the open, it can be a huge relief to talk about it. q • For further information contact Daniel Walshe, Senior High Value and Legacy Fundraising Officer at Rethink Mental Illness – www.rethink.org, email daniel.walshe@rethink.org, tel 020 7840 3032. www.yourexpertwitness.co.uk

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Welcome to our A to Z guide of the websites of some of the Expert Witness field’s leading players.

If you are one of our many online readers simply click on any of the web addresses listed below and you will be automatically directed to that particular website.

To get your website listed on this page just give us a call on 0161 710 3880 or email ian@dmmonline.co.uk AAA Medicolegal Reporting Ltd.

David Bunker Arbitrator & Mediator

The Medicolegal Practice of Donald Campbell Consultant Neurosurgeon.

Disposal & acquisition of businesses, management buyouts, shareholder & partnership disputes and taxation enquiries.

www.aaamedicolegalreporting.co.uk

www.david-bunker.com David W Dyson

Translations and Interpreting for the Legal Profession since 1997.

Specialists in Personal Injury and Clinical Negligence.

Firearms related Civil and Criminal cases • Negligence and liability • Technical Interpretation

www.abc-translations.co.uk

www.firearmsexpert.co.uk

Dr Aman Ranu

Elizabeth J. Soilleux

Expert Witness in Clinical Forensic Medicine.

Injury interpretation • Drink/drug driving cases

Expert Witness Pathologist with a particular interest in haematopathology.

www.expertphysician.info

www.expertwitnesspathologist.co.uk

A J M Birnie F.R.C.S.

Expert Forensics

Consultant Orthopaedic Surgeon. Specialist in backache, neckache and whiplash injuries

Independent forensic consultancy service run by experienced forensic practitioners.

www.whiplashconsultant.co.uk

www.expertforensicsltd.co.uk

A M Associates

Fingerprint Analysis

Chartered Building Surveyors & Project Managers. Expert Witness and Dispute Resolution Services.

Experts in fingerprint legislation, standards of fingerprint evidence and fingerprint development techniques.

www.am-associates.co.uk

www.fingerprint-analysis.co.uk

Building Design Workshop

Forensic Mobile Services

• Architects • Expert Witnesses • Project Managers • Energy Consultants

Specialists in Digital Forensics & Cell Site Analysis

www.expertsbdw.com

www.fmsgroup.co.uk

Central Investigation Bureau

Griffin Forensics

• Surveillance • Process Serving • Tracing • Insurance Investigation • Status & Financial Reports

Cost effective and jargon free Digital Investigation and Data Recovery service. Contact Chris Watts:

www.c-i-b.co.uk

T: 07789 986459 www.griffinforensics.com

Mr Chris Makin

Inclusion.me Ltd

• Chartered Accountant • Accredited Civil Mediator • Accredited Expert Determiner

Medico-Legal & Second Opinion Occupational Therapy Services.

www.chrismakin.co.uk

www.inclusion.me.uk

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Dr Joshua Adedokun

Mr. Michael Hodge

Chronic pain expert following personal and occupational injuries. Wide experience in medical negligence claims.

Maxillofacial and Oral Surgeon.

• Personal Injury • Criminal Cases • Clinical Negligence

www.expertpainreports.co.uk

www.consultantoralandmaxillofacialsurgeon.co.uk

Lakes Medico Legal

Mr Michael Thompson

Our specialism is musculo-skeletal trauma and we provide a full range of medico legal services in this field.

Specialist in bowel cancer and the effects of delay in diagnosis on survival.

www.lakes-medicolegal.co.uk

www.expertcolorectalsurgeon.co.uk

Dr Laurie Durand (Medlegal Consulting)

Optimum MedicoLegal

Expert witness services for court appearances countrywide in Forensic Psychiatric and Child Protection proceedings.

A Premium Service for Psychiatric.

Medico Legal Reports.

www.medlegal.co.uk

www.optimummedicolegal.com

Mr Marcus Ornstein

Mrs Robyn Webber

Recently (this year) retired general surgeon with expertise in general surgery, breast disease, hernia and abdominal trauma.

Private Consultant Urological Surgeon. Medicolegal reports for both medical negligence and personal injury cases.

www.marcusornstein.co.uk

www.robynwebber.com

Marsh & Parsons

Professor Roger James

Valuation expertise in rental and capital matters in respect of both residential and commercial property.

Independent Health Consultant and Expert Witness in the field of cancer services.

www.marshandparsons.co.uk

www.independenthealthconsultant.co.uk

Dr. Martin Barrett

Mr Simon Bramhall

Forensic physician and expert witness in cases concerning interpretation of injuries and custody medicine.

Consultant HPB & Liver Transplant Surgeon. Significant medico legal work undertaken in his area of expertise.

www.forensic-medical.co.uk

www.simonbramhallhpbsurgeon.co.uk

Maurice W McLain

Dr Thomas C M Carnwath

Consultant in Accident & Orthopaedic Surgery.

Specialist in whiplash and sports injuries.

Consultant Psychiatrist and expert witness in medical negligence and personal injury cases.

mauricemclain@btconnect.com

www.psycholegal.org

MD5 Ltd

WeatherNet Ltd: Dr Richard Wild

Expert analysis of digital evidence stored on computers, phones and other digital devices

Legal (CPR/non CPR) Weather Reports or Certified Statements for civil and criminal cases (e.g. RTA/PI claims)

www.md5.uk.com

www.weathernet.co.uk

Medical Illustration UK Ltd

Mr William Stuart Hislop

High quality photography for personal injury claims and other medico-legal requirements

Consultant Oral and Maxillofacial / Head and Neck Surgeon.

Specialist in ablative and reconstructive surgery.

www.migroup.co.uk

www.wshislop.co.uk

www.yourexpertwitness.co.uk

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MEDICAL NOTES ‹ ALL MEDICAL PROFESSIONALS have to deal with stressful situations on a day to day basis,

ranging from delivering bad news to a patient to losing a patient and having to break that news to the family. However, most stressful of all is when these situations lead to a claim of negligence – and such claims are on the increase. So, what can a doctor do to avoid potential litigatiion and to defend his actions when such a claim is made. With over 20 years experience in the field of medicine and medico-legal matters, Dr Asef Zafar has some helpful advice for the profession which, if followed, should lead to a reduction in these cases.

• There is, of course, only a small proportion of doctors who put their patients at risk and leave themselves open to negligence claims but the General Medical Council (GMC) has found strong support for proposals to deal with them. They will be publishing new guidance on fitness to practice this summer. Ensuring that NHS staff feel free to speak up about about patient safety concerns without fear of victimisation is also of vital importance and Sir Robert Francis QC, chair of the Freedom to Speak Up review, has announced a package of recommendations. The GMC has welcomed his report.

• One area which continues to be a source of concern – and litigation – is that of aesthetic surgery, where the recent growth of Valentine’s Day-themed promotions is evidence that much of the sector has yet to fall in love with the recommendations of the Keogh Review. The British Association of Aesthetic Plastic Surgeons condemns such offers and its former president, Rajiv Grover, is heavily critical of the response of the Advertising Standards Authority to this agressive marketing, calling it ‘a bark without any bite’.

• For lawyers, the process of conducting a personal injury claim – from instruction through to resolution – involves managing relationships with experts and communicating effectively with them.

Psychologist Dr Hugh Koch argues the case for continuing professional education for lawyers in psychological injury with more training and development needed to improve their knowledge of such injuries. He sees this as crucial to the credibility of the civil litigation procedure.

• In times gone by, there was no compensation culture – most claims for personal injury related to physical disability following an accident at work or on the road and the psychological aspect of a claim was rarely considered. Pain was also thought to be a strictly physical issue with factors such as stress not being taken into account at all.

Rheumatologist and regular contributor, Dr Anthony Clarke, takes us on a ‘little journey through pain’ to help explain to lawyers why so many different specialists turn up in pain cases. q

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Leading gynaecologist has national and international reputation ‹ MR JONATHAN FRAPPELL has been a consultant at Derriford Hospital

in Plymouth for over twenty years and has a broad experience in all areas of gynaecology and obstetrics.

During this time he has developed a particular expertise in endoscopic or ‘keyhole’ surgery and is recognised both nationally and internationally as a leader in this field.

Endoscopic surgery has many benefits for patients and can be used in the diagnosis and treatment of a wide range of gynaecological conditions, particularly menstrual problems, endometriosis and prolapse. Mr Frappell also has specific interests in the management of vulval problems, abnormal smears (colposcopy) and related conditions.

Mr Frappell can act as an expert witness in all of these specialist areas, having attended courses on ‘Medico-legal Report Writing’ and ‘Giving Evidence in Court’. Indeed, he regularly provides expert reports for the NHS legal authorities in England, Wales and Scotland.

He also acts for both the Medical Defence Union and the Medical Protection Society on behalf of their members and has recently appeared as the defence expert witness at a full General Medical Council Fitness to Practise hearing which was successfully defended.

As well as appearing for the defence, Mr Frappell can also act on instructions for the claimant. In fact, his medico-legal reports – of which he completes approximately five per month – are split fairly evenly between claimant and defendant. q

Liver expert famed for plane crash transplant ‹ WHILE WORKING AT THE Queen Elizabeth Hospital in Birmingham

in 2010, leading liver expert Simon Bramhall was involved in the dramatic transplantation of a liver that had been on board a private jet that crashed in fog at Birmingham International Airport en route to the hospital. According to Mr Bramhall, the recipient would ‘certainly have died’ without the liver, which mercifully survived the crash unscathed.

With around 10-15 instructions per year as an expert witness in his specialist area, which covers the whole spectrum of liver, biliary and pancreatic surgical matters, Mr Bramhall carries out medico-legal work in criminal cases in addition to medical negligence work. His client base is reasonably evenly split between claimant and defendant.

Mr Bramhall was a consultant surgeon at the liver unit of Queen Elizabeth Hospital between 2002 and 2014, performing liver transplantation, pancreatic cancer surgery and liver surgery. He is now a consultant general/upper GI (HPB) surgeon.

In addition to his surgical duties, Mr Bramhall has been involved in tutoring and examining medical students and supervising postgraduate students in higher degrees, management and research.

He has published peer review papers, abstracts and book chapters and also has given presentations and invited lectures nationally and internationally.

He is a member of the West Midlands Surgical Society, the Midland Gastroenterological Society, the Association of Surgeons of Great Britain and Ireland and the Association of Upper GI Surgeons. q

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Grant will help better assess veterans’ mental health needs

‹ THE NHS IS set to benefit from a

charitable grant of £75,000 to review the mental health needs of military veterans. The Forces in Mind Trust (FiMT) has awarded the money to fund a national review of health needs assessments for veterans’ mental health and other health related needs. The work will be a collaboration between NHS England and Community Innovations Enterprise.

Although a number of local authorities and Clinical Commissioning Groups, have previously completed military veterans’ health needs assessments, Lord Ashcroft’s Veterans’ Transition Review highlighted a lack of consistency and completeness of these assessments. This new review will be a quantitative and qualitative view of what is currently known to develop a greater level of

understanding of the health needs of serving armed forces personnel, and how this impacts on their transition to civilian life.

Kate Davies, head of armed forces commissioning at NHS England, said: “There have been significant improvements in access to mental health services for veterans and further improvements are planned for the general population through the Parity of Esteem programme and the Crisis Concordat; but it is clearly necessary to ensure that NHS England and local commissioners are well informed and have a firm evidence-base for reviewing the range of services offered, which is where this review of health needs assessments will bring the greatest benefit.”

Chief executive of the Forces in Mind Trust, Ray Lock, said: “An assessment of this

type will enable FiMT to build its evidence base and, for the first time, the military and healthcare communities will have a real insight into veterans’ health needs.

“Mental health issues in particular are one of the key challenges which ex-service personnel can face when coming out of the armed forces and can make transition to civilian life extremely difficult. Having an understanding of other health needs which can stem from these issues will expose further areas for research and evidence gathering.” R • Issues surrounding the mental health needs of service personnel have featured regularly in Your Expert Witness and constitute a live arena of debate among experts.

Experts unlock the secrets of Savile’s offending ‹ ON 26 FEBRUARY the latest and perhaps most damning of the reports into the activities of the late Jimmy Savile were revealed to a shocked and incredulous world.

A further 16 reports were published on that one day, bringing the total published so far to 44. Those 16 included the main report from Stoke Mandeville, where some of Savile’s most shocking abuse took place.

That report was produced by a range of experts in a number of areas of work, both in the health service and other areas of corporate governance.

It was led by the chief executive of the Health and Social Care Advisory Service, Dr Androulla Johnstone.

The report confirmed that Savile abused 63 people at Stoke Mandeville between 1969 and 1992, aged between 8 and 40. Most damningly for the hospital authorities, it found that several complaints were made, including one formal complaint by the father of someone who had been abused. That complaint was withdrawn because of the ill health of the child.

Liz Dux – a senior personal injury lawyer specialising in sexual abuse claims at Slater and Gordon Lawyers – represents 168 of Savile’s alleged victims. Liz said that one client was told: “Be quiet you silly girl, do you know what he has done for the hospital?”

The Stoke Mandeville report highlights an urgent need for the mandatory reporting of child abuse, something that Slater and Gordon Lawyers have campaigned about for some time. Liz Dux said: “There was something clearly amiss at Stoke Mandeville Hospital as Savile’s deviant and sickening behaviour continued”.

In a statement to the Commons, Health Secretary Jeremy Hunt reiterated the Government’s apology to the victims, adding “What happened was horrific, caused immeasurable and often permanent damage, and betrayed vulnerable people who trusted us to keep them safe – we let them down.”

He added: “In total, 177 men and women have now come forward with allegations of abuse by Jimmy Savile, covering a period beginning in 1954 to just before his death in 2011. At least 72 people who gave evidence were children at the time of the abuse, the youngest only 5 years old. The allegations included rape, assault, indecent assault and inappropriate comments or advances.

“Allegations were made not in one or two places but in over 41 acute hospitals – that is almost a quarter of all NHS acute hospitals – as well as five mental health trusts and two children’s hospitals. Further investigations have happened at a children’s convalescent home, an ambulance service and a hospice.” R

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How to avoid becoming my next negligence case DR ASEF ZAFAR MBBS MRCGP MEWI of UK Doctors Ltd offers some tips to doctors on avoiding negligence claims

‹ UNFORTUNATELY, WHEN WORKING IN the field of medicine,

some things are almost guaranteed to happen. These include difficult moments such as losing patients, stressful moments such as delivering bad news and perhaps worst of all are the potentially explosive situations such as having to tell a patient that there is nothing you can do to help.

Amongst all of these issues, it is generally accepted that patients may want to raise a case against you in terms of clinical negligence.

Current figures show that clinical negligence is a bigger issue for doctors than ever before across the UK and the wider world. Figures from the NHS Litigation Authority (NHSLA) show that the number of clinical negligence claims received by the NHS grew by almost 10% from 9,143 claims in 2011-12 to 10,129 claims in 2012-13. These figures may not explicitly point to a rise in negligence however, and could instead be partially due to several factors, such as a rise in advertising for claimants to come forward, a social acceptance of claiming that accompanied the rise of the so called ‘claim culture’ which saw claims double in the mid-nineties or to a better understanding by patients of their rights and entitlements within the law.

The NHSLA figures also show that between 2003 and 2013 more than a third of clinical negligence cases were abandoned by the claimant and 47% were settled out of court.This could suggest several factors, but one possible reason for the high claim abandonment rate is that as further evidence (such as medical notes) is reviewed, the case may look less likely to finish successfully.

Whilst clinical negligence claims may be impossible to fully avoid in practice, it is always best to ensure that you are working to a standard of care that will shine through a case and demonstrate that you were fully justified in making the decisions that you have had to make. The two most important factors here are avoiding potential claims and defending against future claims through the proper maintenance of records.

Avoiding potential claims Ensure you have the relevant knowledge to safely make the necessary decisions: As a clinical negligence and medicolegal expert with over 20 years’ experience in the field of medicine and medicolegal matters, I have found that the most dependable method of avoiding negligence is to ensure that you are competent in all aspects of your line of work. This can include keeping up to date with the most current professional knowledge and skills, regularly taking part in activities that maintain and develop competence and performance and finding and taking part in structured support opportunities and teaching.

Other factors that often come in to play involve good management skills, timekeeping and self-auditing to monitor and improve the quality of your work. These principles, if followed, allow a doctor to perform their duties to both the patient and the wider heath service proficiently and are the foundation for being a competent and reliable medical expert. Attending courses and seminars that are relevant to your field of expertise also helps in doing your job professionally and adeptly. Having an annual appraisal is an effective way to ensure that you keep track of your training and proficiencies.

Apply the correct knowledge and experience to practice and utilise them effectively: I find that even as an expert in a field you must recognise and work within the limits of your competence and be acutely aware of when to ask for help when it’s needed. This will ensure that

you provide a good standard of practice and care. If you assess, diagnose or treat patients, then you need to adequately assess the patient’s conditions, taking account of their history and not just including the symptoms but often also psychological, spiritual, social and cultural factors in line with their views and values. It is important to examine the patient promptly, provide or arrange suitable advice, investigations or treatment where necessary and refer a patient to another practitioner when this better serves their needs.

In providing clinical care you are required to prescribe drugs or treatment, including repeat prescriptions, only when you have adequate knowledge of the patient’s health and are satisfied that the drugs or treatment best serve the patient’s needs. You must provide effective treatments based on the best available evidence, take all possible steps to alleviate pain and distress whether or not a cure may be possible, consult colleagues where appropriate, respect the patient’s right to seek a second opinion and check that the care or treatment you provide is compatible with any other treatments the patient is receiving including, where possible, self-prescribed over-the-counter medications and supplements.

You must be satisfied that you have consent or other valid authority before you carry out any examination or investigation, provide treatment or involve patients or volunteers in teaching or research. Often it is possible to gain consent from a client at the same time as you are fully explaining their condition, therefore allowing them to make an informed decision. You must make good use of the resources available to you, in a way to provide the most effective care for your patients. Wherever possible, avoid providing medical care to yourself or anyone with whom you have a close personal relationship, as this can lead to issues outside of standard clinical practice.

Respond to potential risks to safety: To best ensure that no client is put into a position in which they could later make a claim, it is important to promote and encourage a culture that allows all staff to raise relevant concerns openly and safely. You and your colleagues need to take prompt action if you think that the patient’s safety, dignity or comfort is or may be compromised. If you feel that a patient is not receiving basic care to meet their needs, you must immediately tell someone who is in a position to act straight away. If patients are at risk because of inadequate premises, equipment or other resources, policies or systems, you should ensure that the matter is resolved quickly and efficiently. It is important to also raise your concern in line with medical guidance and your workplace policy. You should make a record of the steps you have taken and take full detailed notes where possible.

If you have concerns that a colleague may not be fit to practise and may be putting patients at risk, you must ask for advice from a colleague, your defence body or the GMC. If you are still concerned, you must report this, in line with GMC guidance and your workplace policy, and again make a record of the steps you have taken. It is your duty to offer help if emergencies arise in clinical settings or in the community, taking account of your own safety, your competence and the availability of other options for care. If you have vulnerable adults or children and young people as patients, you should consider their needs and welfare and offer them help if you think their rights have been abused or denied. www.yourexpertwitness.co.uk

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Protect patients and colleagues from any risk posed by your health: If you know or suspect that you have a serious condition that you could pass on to patients, or if your judgement or performance could be affected by a condition or its treatment, you must consult a suitably qualified colleague. It is essential that you follow their advice about any changes to your practice they consider necessary. You cannot rely on your own assessment of the risk to patients. You should be immunised against common serious communicable diseases and should also be registered with a general practitioner outside your family.

Continuity and co-ordination of care: It is important to contribute to the safe transfer of patients between healthcare providers and between health and social care providers. This means that it is imperative that you share all relevant information with colleagues involved in your patient’s care within and outside the team, including when you hand over care as you go off duty and when you delegate care or refer patients to other health or social care providers.

It is also important to check, where practical, that a named clinician or team has taken over responsibility when your role in providing a patient’s care has ended. This may be particularly important for patients with impaired capacity or who are vulnerable for other reasons. When you do not provide your patient’s care yourself, for example when you are off duty or you delegate the care of a patient to a colleague, you need to be satisfied that the person providing care has the appropriate qualifications, skills and experience to provide safe care.

Establish and maintain partnerships with patients: It is important to endeavour to be polite and considerate with every patient. Even if a patient’s physical treatment has been exemplary, they may still put in a complaint about your attitude during the process. Therefore, it is vital to ensure that you treat patients as individuals and respect their dignity and privacy. It is also crucial that you treat them with respect whatever their life choices and beliefs.

To ensure that the patient’s end experience is a positive one, you must work in partnership with them, sharing information they will need to make decisions about their care. This includes information about their condition, its likely progression and options for treatment, associated risks and uncertainties, the progress of their care, you and your colleagues’ roles and responsibilities in the team, how information is shared within teams and among those who will be providing their care and any information patients may need if they are asked to agree to be involved in teaching or research. This will ensure that the client is fully aware of their own position and why you have had to make the sometimes difficult choices needed.

Treat all information about patients as confidential so as to avoid making errors. This includes after a patient has passed away. It is important to support patients in caring for themselves to empower them to improve and maintain their health. This may, for example, include advising them on the effects of their life choices on their health and offering support to make lifestyle changes where appropriate. You need to ensure that you fully explain to patients if you have a conscientious objection to a particular procedure and tell them about their right to see another doctor and ensure that they have enough information to exercise that right. In providing this information you must not imply or express disapproval of the patient’s lifestyle, choices or beliefs. If it is not practical for a patient to arrange to see another doctor, you must make sure that arrangements are made for another suitably qualified colleague to take over your role.

Communicate effectively: Ensure that you listen to patients, take account of their views and respond honestly to their questions. You are required to give patients the information they want or need to know in a way they can understand. You should make sure that arrangements are made, wherever possible, to meet a patient’s language and communication needs. It is vital to be considerate to those close to the patient and be sensitive and responsive in giving them information and support. When you are on duty you should be readily accessible to patients and colleagues seeking information, advice or support.

Collaborate with colleagues to maintain or improve patient care: Work collaboratively with colleagues, respecting their skills and contributions and treating them fairly and with respect. You need to be aware of how your behaviour may influence others within and outside

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the team. Patient safety may be affected if there is not enough medical cover, so where reasonable you are required to take up any post you have formally accepted, and work your contractual notice period before leaving a job, unless the employer has reasonable time to make other arrangements.

Show respect for patients: You must not use your professional position to pursue any form of non-clinical relationship with a patient or someone close to them and not express your personal beliefs (including political, religious and moral beliefs) to patients in ways that exploit their vulnerability or are likely to cause them distress. It is important to be open and honest with patients if things go wrong. If a patient under your care has suffered harm or distress, you should put matters right (where possible), offer an apology, explain fully and promptly what has happened and the likely short-term and long-term effects. This will help the patient feel like the situation has been rectified ‘in-house’ and may help to avoid them taking drastic measures such as seeking legal advice.

Treat patients and colleagues fairly and without discrimination: Give priority to patients on the basis of their clinical need if these decisions are within your power. If you are faced with inadequate resources or policies or if systems prevent you from doing this and you feel that patient safety, dignity or comfort may be seriously compromised, then you have to raise this with a senior colleague (where available) and take note of your attempt to raise the issue.

The investigations or treatment you provide or arrange must be based on the assessment you and your patient make of their needs and priorities, and on your clinical judgement about the likely effectiveness of the treatment options. You must not refuse or delay treatment because you believe that a patient’s actions or lifestyle have contributed to their condition and you cannot deny treatment to patients because their medical condition may put you at risk. If a patient poses a risk to your health or safety, you should take all available steps to minimise the risk before providing treatment or making other suitable alternative arrangements for providing treatment.

You cannot unfairly discriminate against patients or colleagues by allowing your personal views to affect your professional relationships or the treatment you provide or arrange. You should challenge colleagues if their behaviour does not comply with this guidance, if the behaviour amounts to abuse or denial of a patient’s or colleague’s rights then you have a duty to pass this information on to a senior colleague (where available). It is important to consider and respond to the needs of disabled patients and you should make reasonable adjustments to your practice so they can receive care to meet their needs.

Respond promptly, fully and honestly to complaints and apologise when appropriate. You cannot allow a patient’s complaint to adversely affect the care or treatment you provide or arrange. You should end a professional relationship with a patient only when the breakdown of trust between you and the patient means you cannot provide good clinical care. It is necessary to make sure you have adequate insurance or indemnity cover so that your patients will not be disadvantaged if they make a claim about the clinical care you have provided in the UK. If someone you have contact with in your professional role asks for your registered name and/or GMC reference number, you are required to give this information to them.

Defending against future claims Record your work clearly, accurately and legibly: Documents you make to formally record your work, including clinical records, must be clear, accurate and legible. It is important to make records at the same time as the events you are recording or as soon as possible afterwards. It is vital to keep records that contain personal information about patients, colleagues or others securely, and in line with any data protection requirements.

Clinical records should include relevant clinical findings, the decisions made and actions agreed, and who is making and agreeing them, the information given to patients, any drugs prescribed or other investigation or treatment and who is making the record and when. It is also important to note details that you feel may be important later, such as whether the patient declined a chaperone.

Contribute to and comply with systems to protect patients: It is important to take part in regular systems of quality assurance and quality improvement to promote patient safety. This includes taking part in regular reviews and audits of your own work and that of your team, responding constructively to the outcomes, taking steps to address any problems, carrying out further training where necessary, regularly reflecting on your standards of practice and the care you provide and reviewing patient feedback where it is available.

To help keep patients safe you must contribute to confidential inquiries, contribute to adverse event recognition, report adverse incidents involving medical devices that put or have the potential to put the safety of a patient or colleague at risk, report suspected adverse drug reactions and respond to requests from organisations monitoring public health.

When providing information for these purposes you should still pay close attention to keeping a patient’s confidentiality.

Teaching, training, supporting and assessing: You should be prepared to contribute to teaching and training doctors and students. It is good practice to recognise the beneficial effect that teaching others will have on your own recollection of training that you may have last revised several years ago. It is imperative that you ensure that all staff you manage have appropriate supervision. It is important to be honest and objective when writing references and when appraising or assessing the performance of colleagues, including locums and students. References must include all information relevant to a colleague’s competence, performance and conduct.

Act with honesty and integrity: You have a duty to make sure that your conduct justifies your patients’ trust in you and the public’s trust in the profession. You are required to always be honest about your experience, qualifications and current role. You need to act with honesty and integrity when designing, organising or carrying out research, and follow national research governance guidelines and the GMC guidance.

Communicating information: You must be honest and trustworthy in all your communication with patients and colleagues. This means you are required to make clear the limits of your knowledge and make reasonable checks to make sure any information you give is accurate.

When communicating publicly, including speaking to or writing in the media, you are required to maintain patient confidentiality. You should remember when using social media that communications intended for friends or family may become more widely available.

When advertising your services, you must make sure the information you publish is factual and can be checked, and does not exploit patient vulnerability or lack of medical knowledge. You are required to be honest and trustworthy when writing reports and when completing or signing forms and other documents. It is important to make sure that any documents you write or sign are not false or misleading and take reasonable steps to check the information is correct. You cannot deliberately leave out relevant information.

Openness and legal or disciplinary proceedings: It is essential that a doctor is honest and impartial when giving evidence to courts or tribunals. You have a duty to make sure that any evidence you give or documents you write or sign are not false or misleading. You must take reasonable steps to check the information given and make it obvious which facts are taken from other sources. You cannot deliberately leave out relevant information and you have to co-operate with formal inquiries and complaints procedures and offer all relevant information while following the guidance. It is important to make clear the limits of your competence and knowledge when giving evidence or acting as a witness.

You are required to tell the GMC without delay if, anywhere in the world, you have accepted a caution from the police, been criticised by an official inquiry, been charged with or found guilty of a criminal offence or if another professional body has made a finding against your registration as a result of fitness to practise procedures. If you are suspended by an organisation from a medical post, or have restrictions placed on your practice, you are required, without delay, to inform any other organisations you carry out medical work for and any patients you see independently.

Honesty in financial dealings: It is vital that you be honest and upfront in financial and commercial dealings with patients, employers, insurers and other organisations or individuals. You must not allow any interests

you have to affect the way you prescribe for, treat, refer or commission services for patients. If you are faced with a conflict of interest, you need to be open about the conflict, declaring your interest formally and you should be prepared to exclude yourself from decision making. You must not ask for or accept – from patients, colleagues or others – any inducement, gift or hospitality that may affect, or be seen to affect, the way you prescribe for, treat or refer patients or commission services for patients.

Conclusion The points raised above will not exempt you from ever having a negligence claim made against you, but should serve as a non-exhaustive list of helpful tips to hopefully avoid having such a claim made for as long as possible and ensure that you are ready if one is made. These tips are to be taken alongside common sense and, if in doubt, doctors should consult the GMC or their medical insurance agency for advice as soon as possible following any formal complaints.

The number of claims being made is rising each year – according to the Marsh Report of the NHSLA 62% of the claims received in 2009-2010 were for clinical negligence with payments on clinical negligence claims of £787 million. This figure, although several years ago, shows the extreme nature of negligence claims and the damage they inflict on healthcare budgets.

This rise shows little sign of slowing down in the coming years, making it crucially important to amend and improve working practices to avoid being placed in a potentially difficult situation. The significance of proper note taking on a case can’t be stressed enough, as quite often this is the basis of a clinical negligence case and can be the difference between successfully defending a case or not. Ensuring that medical notes are verbose and all-encompassing will help a doctor to prove that he did follow correct procedures and to offer some defence when explaining why a specific course of treatment or action was chosen.

Hopefully, if you follow the tips given in this article, you will never have one of your patient’s cases land on my desk. q

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Eye surgery can be life-changing ‹ FOR OVER 20 YEARS, Mr Wayne Crewe-Brown has helped

to transform the lives of over 20,000 people in the United Kingdom, Ireland and South Africa.

As a consultant ophthalmic surgeon, specialising in refractive and cataract surgery, he has become one of the most experienced eye surgeons in the world and is an international authority on corneal inlay procedures – revolutionary treatments that help alleviate the effects of presbyopia, commonly known as the age-related need for reading glasses.

Mr Crewe-Brown heads one of the north west's busier medicolegal practices, specialising in all ophthalmic disciplines – including paediatric, anterior segment, glaucoma, retinal (medical and surgical) and oculoplastic.

Reports are prepared quickly and communication is prompt and professional from Louise Brennan, Mr Crewe-Brown’s secretary.

Appointments are available at his central Manchester clinic as well as his Harley Street rooms. q • Please visit www.medicolegaleye.com for more information.

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GMC finds strong support for sanctions against ‘bad’ doctors ‹ A MAJOR CONSULTATION by the

General Medical Council (GMC) has found strong support for proposals to deal with the small number of doctors who put patients at significant risk or cause them harm.

More than two thousand people responded to the consultation, including patients, doctors and professionals from across the health service.

The GMC had consulted on the guidance for fitness to practise panels of the Medical Practitioners Tribunal Service (MPTS), who decide what sanction doctors should face when they are a risk to patients or have put the reputation of the profession at risk. The guidance is also used by GMC decision makers who decide whether or not to refer a doctor under investigation to an MPTS panel.

The GMC will publish new guidance for MPTS fitness to practise panels reflecting on the consultation in the summer.

Niall Dickson, GMC chief executive, said: “The vast majority of doctors provide safe and compassionate care and continue to deserve the trust and respect that the public continues to have for the medical profession. There are more than a quarter of a million doctors in the UK and very few are ever subject to a sanction.

This consultation is about how we deal with that small minority.

“The overwhelming response to the consultation, and the strong support for the proposals, will help us produce better guidance to protect patients and uphold public confidence

in the good doctors who are providing effective, compassionate and safe care every day.”

His Honour David Pearl, chair of the Medical Practitioners Tribunal Service, added: “MPTS panels are on the frontline when it comes to ensuring patient safety, as it is the decisions that they take that determine whether a doctor is fit to practise. The important powers that they have can restrict or remove a doctor’s registration if they find it is necessary in order to protect the public. The revised guidance will help ensure that in the most serious cases, appropriate

sanctions are imposed that have the confidence of the public.”

Niall Dickson added: “The consultation also demonstrated the importance of apologising to patients when things go wrong. In this consultation we asked whether failing to apologise should affect the sanction a doctor faces, and there was strong support for this to be included in new guidance. Until now this has not been highlighted as one of the factors which are likely to affect sanctions – that is now likely to change.” q

Protection for whistleblowers will improve patient safety, report says ‹ ON 11 FEBRUARY Sir Robert Francis QC, chair of the Freedom to

Speak Up review, announced a package of recommendations to ensure in NHS staff are free to speak up about patient safety concerns.

His report to Secretary of State for Health, Jeremy Hunt, identified an on-going problem in the NHS, where staff are deterred from speaking up when they have concerns and can face shocking consequences when they do.

Sir Robert found NHS staff want to speak up and heard lots of examples of organisations supporting them to do so. But he heard that many are put off speaking up because they fear victimisation. Others don't speak up because they feel their concerns won’t be listened to.

The review heard stories of staff that have faced isolation, bullying and counter-allegations when they’ve raised concerns. In some extreme cases when staff have been brave enough to speak up, their lives have been ruined.

Managers told the review that they can find it difficult to identify the people with genuine concerns from those who want to deflect from their own poor performance.

Sir Robert, who headed the investigation into the Mid-Staffordshire scandal which led to over 100 successful negligence claims, said: “Failure

to speak up can cost lives. I began this review with an open mind about whether there are things getting in the way of NHS staff speaking up.

However the evidence received by the review has confirmed that there is a serious issue within the NHS. This issue is not just about whistleblowing – it is fundamentally a patient safety issue.”

Responding to the report, NHS England’s chief executive Simon Stevens said: “As a nation we can rightly be proud of the fact that NHS care is now the safest it has ever been. But as I’ve sat down and listened hard to whistleblowers over the past year, it’s blindingly obvious that the NHS has been missing a huge opportunity to learn and improve the care we offer to patients and the way we treat our staff.

“These important proposals – particularly for a new national office of the whistleblower – will provide clear new safeguards and signal a decisive change in culture in every part of the health service.”

The General Medical Council also welcomed the report. Its chief executive Niall Dickson said: “Doctors are much more likely today to raise concerns about standards of care than they were a generation ago but, as Sir Robert has shown, in too many institutions and departments fear and hierarchy still inhibit honest and open reflection. And a system where staff are frightened to raise concerns is not a safe system.” q www.yourexpertwitness.co.uk

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Surgeons condemn offers of Valentine’s ‘prizes’ ‹ ONE YEAR ON from the Government’s response to the Keogh

Review, Valentine’s Day-themed marketing promotions showed that much of the aesthetic sector has yet to fall in love with recommendations for best practice, according to the British Association of Aesthetic Plastic Surgeons (BAAPS).

The association – the only one based at the Royal College of Surgeons solely dedicated to the advancement and education of cosmetic surgery – condemned unscrupulous time-sensitive discount deals that appeared to continue to flourish unchecked.

Despite a Government enquiry condemning time-linked offers for treatments such as facial injectables as unethical, Valentine’s Day-themed offers appeared ‘all over the web’ and providers still face no more than a warning from the Advertising Standards Authority (ASA). One clinic even offered breast implants as a Valentine’s Day ‘prize’.

Former BAAPS president and consultant plastic surgeon Rajiv Grover declared: “If, despite Government directives, providers can continue to advertise time-sensitive deals and prizes for what should be deemed as medical treatments, what message does that send about our sector?

Nothing to see here folks. No need to be concerned with guidelines for best practice – since no one will face consequences.”

The BAAPS publicly condemned cosmetic surgery ‘prizes’ in 2007 on the basis that it trivialised the risks of surgery while promoting its benefits to patients making irreversible decisions in circumstances of hype, excitement and emotion, but the aggressive marketing tactic has again reared its ugly head under the premise of a ‘Valentine’s Day’ contest. That was despite the recent and tragic death of a

medical student who gave in to pressure to proceed with a liposuction ‘prize’ offered in a beauty contest.

Rajiv Grover continued: “This example of a cosmetic surgery competition was appalling in 2007, but beggars belief in 2015. It is outrageous that despite the warnings in the Keogh Review and the Government's response, clinics continue to behave without a conscience by putting their profits before common sense. BAAPS has campaigned against this sort of marketing practice for over a decade and consistently pointed out loopholes in the regulation of the aesthetic sector, which have failed to be shut down.

“Marketing such as this led to thousands of women choosing to undergo breast augmentation without fully understanding the risks. A warning from the ASA in response to aggressive marketing and advertising is a bark without any bite, and clinics repeatedly flout this token slap on the wrist – yet will gain a database of patients who have not considered any risk.” q

Arts workshops help reconstruction patients ‹ IN FEBRUARY, women in Swansea who are about to or have

undergone breast reconstruction surgery after cancer were invited to attend ‘workshops’ with a difference.

The workshops, at Singleton Hospital, were run as art projects with six different themes for women to get involved in. They could make photographic or audio diaries to document their journey, pick up hints and tips for customising their clothes or learn about surgical techniques by using them to create textiles.

A further workshop in March will allow participants to learn clay body sculpting to explore perceptions of the female breast and the desired outcomes of breast reconstruction surgery.

One workshop, called ‘digital story’, was a great success for one particular patient, Ailsa. She took part in a short film about her experiences, how breast cancer affected her and how it made her feel.

She said: “I found my body changed shape. I would meet people and they would never know that I had my breast reconstructed. I must admit it was an odd experience, and for a while I had cleavage envy.

But I look at myself now and the surgeons have done an amazing job.”

Prue Thimbleby is the arts in health co-ordinator at Abertawe Bro Morgannwg University. She said: “Creativity can help us to process events and understand things in new ways. The project hopes to introduce new ideas of what arts in health might mean to you.”

Ailsa added: “I’m not one for workshops and group participation events, but the ‘digital story’ was different and really appealed to me. I would definitely recommend women sign up to attend these workshops – you never know who you going to meet and what you might find out about yourself.”

The workshops were led by artist in residence Rhian Solomon. q

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Pelvic organ dysfunction An important but easily overlooked aspect of traumatic injury compensation claims

By SIMON FULFORD, MBBS FRCS(Eng) FRCS(Urol), Consulant Urologist

‚ AS A UROLOGIST WITH a major interest in spinal cord injury,

a lot of my medico legal work involves preparing detailed condition and prognosis reports covering pelvic organ dysfunction that has arisen as a result of a spinal cord injury. Injury to the spinal cord at any level will have adverse effects on bladder, bowel and sexual function and these will often be permanent. Without adequate management, the bladder dysfunction can potentially result in renal injury and ultimately renal failure.

Many patients with spinal cord injury also state that these are the most difficult aspects of their injury to live with and that they have the largest impact on their quality of life. The management of these problems is complex and highly specialised, so an expert condition and prognosis report from an experienced spinal injury urologist can be very important in aiding the court in its judgements regarding compensation.

Other types of traumatic injury may also have profound effects on pelvic organ function which may not be as immediately apparent as in cases of spinal cord injury. Such patients may have head injuries, pelvic fractures or other major injury or multiple injuries.

Many patients with a head injury will fortunately recover normal bladder, bowel and sexual function. However, this may take a significant length of time and sadly many patients are permanently left with very significant levels of pelvic organ dysfunction. These problems can result either directly, from the brain injury affecting the centres that control the pelvic organ functions, or indirectly as part of the psychological and behavioural consequences of the head injury. Sometimes they can be contributed to by the effects of long term catheterisation used to manage the bladder from the time of the injury.

The management of these problems and their impact upon the quality of life of the patient and their carers can be very significant aspects of the overall impact of the head injury. Again, in such cases, a condition and prognosis report from an experienced expert in urology will be very helpful to the court when compensation is being considered.

Pelvic fractures can also have profound effects on pelvic organ dysfunction. Direct injury can occur to the bladder, rectum and anal sphincters at the time of injury. These may be difficult to recognise at the time and their management may be very complex. Even in the absence of such direct injuries, significant pelvic fractures will very often affect bladder and sexual function. This is usually a result of disruption of the nerve supply to the bladder, sphincters and external genitalia.

There may also be alterations in the bladder function due to a loss of elasticity resulting from displacement and compression by haematoma at the time of the injury. Finally, prolonged catheterisation may be required during the treatment of the pelvic fracture and this may result in long term bladder problems due to loss of bladder

capacity, injury to the urethra or sphincters or the development of bladder or kidney stones.

Careful assessment is thus essential in guiding management in these cases and can usually significantly improve the situation. The sexual dysfunction, in the form of erectile dysfunction and/or loss of orgasm and ejaculation in men and the loss of arousal, lubrication and orgasm in females, also requires careful assessment and will usually be amenable to treatment. All of these aspects will be important in the preparation of a condition and prognosis report.

Finally, I also see patients in my clinical and medico legal practice who have suffered major injuries that do not include spinal cord injury, head injury or pelvic fracture, but who have developed significant pelvic organ dysfunction. Often, such patients will have required prolonged periods of bladder drainage with indwelling catheters and will have limited mobility and/or chronic pain problems. All of these factors, together with any pre-existing bladder pathology (benign prostatic hyperplasia, weak pelvic floor muscles or stress urinary incontinence for instance), whether previously symptomatic or not, may contribute to the bladder dysfunction. Careful and expert assessment is therefore important in guiding optimal management and in the production of urological condition and prognosis reports for the court. q

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What ever happened to ‘compensationitis’?

By DR ANTHONY CLARKE, FRCP Consultant in Rheumatology & Rehabilitation, Bath

‹ WHEN I STARTED TO do medico-legal work (shortly after

Judge Jefferies retired) it was a much simpler world. There was no compensation culture. Most claims for personal injury related to physical disability following industrial or road traffic accidents. The psychological aspects of claims were rarely considered. If a claimant was seen whose symptoms were greater than could be explained on the basis of the physical injury sustained, they where thought by the medical experts to be malingering or suffering from ‘compensationitis’.

Not that in those days settlements could be described as inflammatory!

‘Compensationitis’ was a term particularly applied to patients who did not respond to treatment in the way the treating doctor expected. This was, of course, the era when doctors, especially consultants, acted as if they were gods and were regarded as such by their staff and patients.

The use of the term which appeared in notes and letters to the GPs, together with other highly embarrassing comments (patients never saw the contents) such as ‘Good grief, the patients will be asking questions next’, was applied to anyone with an outstanding claim who had the temerity not to get better.

It was also still the time when the majority of doctors saw pain as a strictly physical issue. You sustained an injury, had a baby or developed appendicitis and pain nerves were stimulated. These nerves carried pain signals to the brain, which told you that something was wrong and needed fixing. Most doctors forgot their early medical training, in which they were taught that all sensory input into consciousness was essentially a psychological process in which cultural and situational factors could significantly alter the way the individual interpreted those messages. The best examples shown to us were optical illusions.

We have moved on a long way since those days – although not all of our colleagues have kept up! The route was somewhat tortuous.

When I was a (very) junior doctor the range of medications was limited. We, of course, had opiates and aspirin. Nonsteroidal drugs, like Brufen, were just coming onto the market. The only doctors how knew much about pain were the anaesthetists, who at that time tended to render people unconscious to achieve good pain relief, and radiotherapists, who saw the bulk of cancer patients.

However, the gasmen put down their Times crosswords and started to really get into regional injections – both for anaesthesia, particularly for child birth, but also for severe pain. Much of the severe pain treated was due to cancer, but they were also happy to take on patients with shingles and lumber disc pain not severe enough to require operation. Some neurosurgeons also undertook surgical procedures, mainly aimed at interrupting the passage of the pain messages getting to the relevant parts of the brain.

Other doctors saw significant numbers of patients who had chronic, unremitting pain. They included rheumatologists, with their arthritic patients, and, most interestingly, doctors working in limb fitting centres. When I went to medical school the limb fitting centres were not part of the NHS. They were administered by the Ministry of Pensions, as part of the support given to servicemen from the First World War who lost limbs in combat. When the NHS came into being in 1948, civilians were allowed to access the centres. It was not until 1991 that the service became part of the NHS. The amputation doctors brought with them considerable knowledge and experience in managing phantom limb pain.

Pain clinics were set up in many teaching and district hospitals, run by anaesthetists, primarily for cancer patients. Increasing numbers of patients with chronic back pain, however, were referred

to these clinics. The normal interventions that were used in these clinics were of limited value in many of these patients and alternative approaches where tried, including physiotherapy and then psychology. The concept of pain management was born, with a multidisciplinary team putting the emphasis on education, cognitive behavioural therapy and physical reconditioning.

What the pain management clinics brought with them was an analytical approach to the nature of pain and a far better understanding of why some individuals feel intense, unremitting pain in situations where others, in exactly the same circumstances, either feel little long-term pain or, if they do, have no loss of amenity due to that pain.

There are clear cultural reasons. Many of our amputees from the two recent conflicts in Iraq and Afghanistan are able to undertake extreme physical activities that the majority of us would not contemplate. This is due to a combination of the original psychological strength of the individual, the military ethos along with superb and timely medical and rehabilitation intervention. On the other hand, all those involved in personal injury litigation see claimants who are credible witnesses but whose level of distress from pain, with very considerable loss of amenity, does not seem to match the history of the index accident.

The place to look is to those patients attending pain management programmes who are not in litigation. The exact same phenomena are seen in such patients. We see a number of recurrent problems expressed by patients. These include a belief that the pain is due to a single treatable cause that the doctors have missed, an obsession with the pain and the worsening of the pain due to stressors of one type or another.

It is this last issue which brings me to the point of this article. It is part of the human condition that we are all exposed to stress. Not all stress is harmful. Many individuals gain considerable benefit from stress. Ask the racing driver, the actor, the soldier or the QC how they react to stress and the majority will say that it is the stress that produces their best performances. However, for many individuals stress in a negative factor, no more so than for patients in chronic pain. Stressors can be internal or external. Ask one of my patients with rheumatoid arthritis what makes their pain worse and they will mention having a cold, a row with their partner or being kept awake at night by the baby crying.

Removal of stressors will nearly always have a positive effect on the well-being of a person in pain. If that stressor is prolonged and outside the control of the individual, then its removal will be particularly effective. I suspect that 90% of people reading this article will find litigation an interesting and positive experience, if for no other reason that it has economic benefits. However, we often forget that for the claimant it is a daunting, seemingly unending process. The stress is enormous. It is also a stress that those of us involved in personal injury should do all we can to resolve by expeditious management of claims. It will benefit everyone, including the defendant, but most importantly the claimant, who will be more able to resume a normal life.

By the way, my little journey through pain may just help the lawyers to understand why so many different specialists turn up in pain cases! q www.yourexpertwitness.co.uk

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Infection – a difficult dilemma in orthopaedics

By IAN W FORSTER Consultant Orthopaedic Surgeon

‹ INFECTION IS ALWAYS a problem and can be very difficult to treat,

especially in some situations for instance around implants. It can be simple, such as superficially in a wound, or difficult when deep in the limb with metal implanted. Occasionally it cannot be cured.

Clearly infections occur in a percentage of all operations, with 1-2% being around total joints, and although this may be just unlucky and not the result of malpractice, sometimes there are clear deficiencies in treatment and it is these possible deficiencies that I would like to point to in this article.

Diagnosis This can be difficult. There are a number of blood tests which may indicate a possibility of infection – but not which sort of infection and therefore the correct treatment. The aim is always to obtain a sample of infected material.

The blood tests could show an alteration in the white cell count and type.

This is more helpful in acute infections such as a simple abscess or an acute bone or joint infection.

The C Reactive Protein (CRP) is commonly used to assess the possible prescence of infection and can be used to monitor the effect of treatment through its decreasing level – or otherwise! A radioactive technesium scan has been popular as a test, however this scan stays high for up to 12 to 18 months after surgery so is not useful to assess infection soon after an operation.

The best way of obtaining an accurate cause of infection is to take a sample. Unfortunately doctors, especially GPs, sometimes prescribe antibiotics speculatively without taking any samples when the patients are seen in surgery. This affects the chance of obtaining the correct organism by suppressing that organism but not curing the infection. It is possible that minor bacteria, which are present naturally and not infective, may be thought to be the offending organism. This can be an area of scrutiny as to whether it is negligent.

Any material obtained is examined and cultured by the microbiologist who provides a suggestion as to treatment. Obtaining the specimen may just be a swab from a wound which is discharging pus. In a joint aspiration drawing off fluid would be sufficient. This would depend on there being fluid to aspirate (some infected joints are dry) and that fluid being thin enough to be drawn off through a syringe and needle.

An alternative in the most difficult cases would be to insert an arthroscope in the joint and draw or wash out fluid through the larger bore instrument. It is also possible to take specimens of tissue through the arthroscope which may well be heavily infected and lead straight to the correct organism.

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In patients with a long history of recurrent infections around implants, the organism can change and change its resistance – and so even with all these measures, a satisfactory result can be difficult to obtain. However, generally if all these procedures are carried out then a reasonable stab at diagnosis has been attempted.

Treatment Treatment starts with a good diagnosis.Once the specimens have been taken, it is reasonable to start antibiotics on a best guess principle. The culture and identification of the infecting agent can take a few days and the treatment then changed as necessary.

However, the treatment of infection is not just antibiotics, the most important treatment includes surgery. Drainage and/or removal of all infected material is important. This should be carried out without delay but not necessarily immediately.

If the infection is acute then immediate treatment will speed up recovery, particularly as the organism is likely to be sensitive to antibiotics and predictable. A smear of the pus could well show the infective organism and be diagnostic. In this situation, surgery followed by IV antibiotics should cure the infection in a matter of weeks. Where there is an implant, such as a THR or TKR, this may well be saved and not have to be removed.

In the chronic situation the treatment is more difficult, especially if an implant is present. Here the organism may be difficult to culture and define because of previous treatment. Multiple attempts may have to be made to identify it and indeed it may not be possible to find the organism by simple means. Surgical biopsy may produce the answer and if there is a clear infection in the prescence of pus then the infected tissues could be removed.

If an implant is present it is almost certain that it will have to be removed.

This would be followed by IV antibiotics for up to six weeks.

It is to be hoped that the infection would then be cured but this is not always the case. There is a debate as to whether having removed a prosthesis this can be replaced at the same time as infection clearance, using a completely new set of instruments, or at a second operation six weeks later. Both options have their advocates and are acceptable. The first gives better function but the second is safer to avoid re-infection.

There is a bigger problem with more chronic infections where there is a soft tissue defect down to the bone. This cannot be closed by surgical sutures and will need to have a graft applied by the plastic surgeons. This may be a simple skin graft but may involve a musculocutaneous graft needing a blood supply. This takes a long time to heal. In fact, healing is not certain and the graft may need to be repeated. It really can only be inserted when the area is infection free and so this could be some time after the initial treatment for infection. It is a very long and drawn out process. Clearly where there is a defect the prognosis is poorer and the likelihood of continuing infection higher. The timing of treatment and the likely result from faster, earlier treatment can be crucial.

What happens if the infection continues despite all this treatment? This is more likely in the more chronic cases. All sorts of strange organisms may be involved, making treatment tricky. Treatment would normally be instituted after discussion with the microbiologists and possibly the plastic surgeons.

The stages of treatment can be repeated and may be successful. If this is not the case then removal of the implant and fusion (arthrodesis) of the joint may be necessary. However, because of extensive previous surgery this may not be possible and amputation may be necessary. The amputation rate is 0.4%.

Where there is a long history of chronic infection in a patient with poor health, long term antibiotics as a suppressive may be reasonable. However, careful observation is required and the suppression often fails.

Despite appearances, this wound is not infected. It has been opened and closed a second time

This knee is both loose and infected

Litigation can arise around whether all the steps of treatment were carried out in the correct order and expeditiously. There is often considerable debate as to whether investigation and treatment is carried out fast enough.

This means that by controlling the air flow, eddy currents which would include organisms are reduced and by reducing the bacterial count the infection rate is decreased. The area of the laminar flow within the theatre is marked out and all sterile items essential for the op are inside this area, with those not needed outside it. Thus, only vital equipment is near the patient.

The patient’s head is outside the flow as this is a source of organisms.

The scrubbed staff wear impervious gowns to stop organism flow through the fabric and two pairs of gloves. Movement of staff within the theatre is controlled to avoid eddy currents and staff can only enter and leave theatre by a remote door. For the surgeon, gentle handling of tissues and prevention of bleeding again reduces the risk. With this attention to detail, the risks are reduced as far as possible.

Finally, it is usual to give antibiotics as a prophylaxis. Generally this consists of three doses only. Which antibiotic depends on the surgeon’s preference and, with increasing antibiotic resistance, surgeons regularly review their practice with the microbiologists.

With all these precautions the infection rate around implants should be around 1% – if it is over 2% then questions need to be asked! It is usual when there is a sudden higher rate of infection for the hospital to set up an enquiry to ascertain any change that might have lead to this spike and, of course, to find out how to bring the infection rate back down again.

All hospitals these days need to be very aware of their results, including those for infections, and usually the results are published. The surgeons results are also being published in the near future but some are already available from the National Joint Registry. q

Prevention Infection cannot be completely abolished or prevented, but given the disastrous effect of orthopaedic infections, especially around implants, any attempt to reduce the risk is worthwhile. Prevention measures include the environment around the patient and their health, the environment around the operation and hospital wards and, usually, drugs to reduce the risks as far as possible.

The environment around the patient includes whether they are fit medically, whether they have any disease reducing their ability to defend themselves against infection and whether they have any intercurrent infection such as a urinary one. All these aspects should be examined at the pre-op visit which all such patients have. If they have aspects of their condition which are a concern, then these should be considered and improved if possible. After all, total joint replacement is not usually an emergency and there is time to get the patient into their best condition.

Some units give patients antibacterial shower gel to use at home the night before they come into hospital.

We are all aware of the need for cleanliness around the hospital, using handwashes and gloves, and this certainly reduces the infection risk. In theatre the same rules apply. Gloves are always applied prior to touching a patient. Most joint replacements are carried out in a laminar flow theatre.

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The fight against FGM goes global as UK law is set to toughen ‹ ON 6 FEBRUARY health professionals

throughout the world mobilised to mark the UN International Day of Zero Tolerance for Female Genital Mutilation (FGM).

Led by the Inter-African Committee on Traditional Practices (IAC), medical and professional bodies agreed on key principles in the global commitment to end FGM in a generation: • All health personnel to fully adhere to the Hippocratic Oath and their obligation to protect the health and well-being of their patients, which includes not performing FGM • Regulatory bodies in all countries to ensure that health professionals do not promote the medicalisation of FGM • Health personnel will not only protect girls at risk of FGM, but also provide physical, psychological and emotional care and support to survivors • All health professional bodies to ensure that FGM care and prevention are part of their training and education programmes In a statement, the IAC declared: “FGM is an extreme human rights violation that has no medical benefits, but has dangerous health consequences. Every year, three million girls are at risk and, in some countries, FGM procedures are increasingly carried out by health personnel. This ‘medicalisation’ of FGM is one of the biggest threats to its elimination.”

Cathy Warwick, chief executive of the Royal College of Midwives said: “The Royal College of Midwives has been at the forefront in the fight against FGM and, through the Intercollegiate Recommendations, has encouraged the UK Government and other agencies to act to end FGM. “We wholeheartedly support this call.

Stopping this terrible and violent assault on girls and young women is as relevant here in the UK as it is throughout other parts of the world. It is through working together with colleagues in other countries and applying pressure that we will end this practice.”

The move came as the Serious Crime Bill was completing its passage through the House of Commons prior to going to the Lords in March. The Bill contains a number of new measures which will do more to protect victims and ensure that those who either carry out FGM or fail to protect girls from the risk of mutilation will face time behind bars.

Justice Minister Mike Penning said: “We are committed to tackling and preventing the harmful and unacceptable practice of FGM. This is a deplorable crime that we know goes on in some of our communities, but one for which there has not been a conviction to date. Those who commit this heinous crime should not be able to escape justice, while their victims are left with pain and suffering for a lifetime.

RCOG welcomes report on sex and relationship education ‹ THE ROYAL COLLEGE of Obstetricians and Gynaecologists (RCOG) has welcomed

the publication of a Commons Education Committee report, Life lessons: PSHE and SRE in schools. The committee found that the quality of sex and relationships education (SRE) across schools is weak, even though there is strong demand for the subject to be taught. The committee has proposed that Public, Social and Health Education (PSHE), in which SRE sits, is made a statutory subject in the national primary and secondary curriculum.

The report’s key recommendations are: • The Department for Education should develop a work plan for introducing age-appropriate • PSHE and SRE as statutory subjects in primary and secondary schools.

• All schools should be required to run a regular consultation with parents on the school’s • SRE provision.

• The parental right to withdraw their child from elements of SRE should be retained.

• SRE should be renamed Relationships and Sex Education (RSE) to emphasise the • relationships element of the subject In their manifesto for the forthcoming General Election, the RCOG and Faculty of Sexual and Reproductive Healthcare (FSRH) have called for SRE to be made compulsory in schools and colleges and for the government to develop best practice and age-appropriate materials.

RCOG president Dr David Richmond said, “The best way to promote healthy behaviours in the general population is to focus on education at a young age. Social media and the wide availability of information means that the youth of today are so much more sophisticated than their parents were. However, it is very difficult for them to know which sources of information to trust, particularly when they navigate the internet. Schools have a responsibility to help provide credible, evidence-based information to children.” q

“This is why we are strengthening the law, protecting those at risk and making it clear that those responsible will face the full brunt of the law.”

The law will be extended so that a non-UK national who is ‘habitually resident’ in the UK and commits such an offence abroad can now face a maximum penalty of 14 years imprisonment. It will also be an offence to assist a non-UK resident to carry out FGM overseas on a girl who is habitually, rather than only permanently, resident in the UK. This follows a number of cases where victims were unable to get justice as FGM was committed by those not permanently residing in the UK. q

HRT study draws response from RCOG ‹ THE VICE PRESIDENT for Education of the

Royal College of Obstetrics and Gynaecology has commented on a study, published in The Lancet, looking at short-term use of hormone replacement therapy (HRT) and a possible increased risk of ovarian cancer.

Dr Clare McKenzie said: “The RCOG welcomes the further information that this study provides. However, there are concerns about the effect that this isolated information will have on women.

“This study does not provide evidence that HRT is the cause of ovarian cancer. Millions of women who are currently taking or are considering HRT, to treat significant menopausal symptoms that cause serious distress to their quality of life, will be confused or anxious by this information.

“HRT, like any medication or treatment, has risks and benefits. The very small risk that this study highlights must be put in context in that for every 1,000 women who use HRT for five years from around the age of 50, there will only be one extra case of ovarian cancer.

“Women should consider this factor in determining whether to continue to take HRT and balance it against the proven benefits in managing their individual symptoms. For the majority, this will mean that they will continue with treatment.”

Dr Heather Currie, chairman elect of the British Menopause Society and spokesperson for the RCOG added: “Women who are currently taking HRT should not be concerned by this report. HRT is the most effective treatment for symptoms of the menopause and when HRT is individually tailored, it provides more benefits than risks for the majority of women under the age of 60, and for many beyond that age.” q www.yourexpertwitness.co.uk

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Industrial hearing loss claims remain high Despite a series of regulations governing exposure to noise at work, there continues to be a steady flow of cases regarding noise-induced hearing loss caused by noise at work.

‹ NOISE INDUCED HEARING LOSS (NIHL) is usually described

Cases on which he has accepted instructions mainly involve people who have operated in and around high noise levels for much of as ‘damage to the inner ear structures due to repeated exposure to their working life. Noise regulations ensure that workers’ hearing is loud noise over a period of time’. It occurs when the sensitive hair protected. The Control of Noise at Work Regulations are in force with cells inside the cochlea become damaged, resulting in a sensorineural the exception of the music and entertainment sectors. hearing loss. The cells will not usually repair or replace.

Other cases involve personal injury claims as the result of an Problems usually develop gradually but are most severe following accident – for instance car accidents where an individual has resulting exposure to high frequency sound. The resulting hearing loss, centred deafness, nasal facial injuries or whiplash, and which can lead to mostly around the frequencies of 3, 4 and 6 KHz, tends to be similar other ear problems such as tinnitus. in each ear and will inevitably get worse if the individual continues to In many cases defendants may deny either the facts of the hearing be exposed to the noise. loss and tinnitus or its causation and therefore examination by an Individuals can also experience sudden hearing loss due to expert is essential. It is possible to claim many years after the noise exceptionally loud noise, such as an explosion, which is known as exposure was first experienced, although this will be subject to some acoustic trauma. Exposure both to sudden and continuous noise can time limitation. cause tinnitus, resulting in the individual hearing sounds such as In Mr Lancer's experience, around 5-10% of cases of NIHL will fail, ringing, buzzing or whistling – the common link being that the sounds either due to well-preserved hearing or to other disease processes perceived do not have an external source. having been responsible for the symptoms. Many of the cases for Tinnitus can occur suddenly or very gradually. For some the which he has provided a medico-legal report have, however, resulted condition can be temporary, for example after a music concert, in a settlement. however continued exposure to loud noise may make it permanent.

Mr. Lancer also assesses investigations and writes medico-legal Although symptoms can take several years to develop, legal action reports where negligence has been alleged in everyday clinical should be taken swiftly once a problem has occurred, as there is a practice, especially with regard to operations and their complications limited time to make a claim: three years from the date of knowing relating to ear, nose and throat conditions, and how these problems that hearing problems are linked to industrial noise. affect the individual. R A solicitor will conduct checks to ensure a claim is genuine and that the defendant company or insurance policy still exists.

Medical records are then checked and, if no previous issues are raised and there is a reasonable likelihood of MR JACK LANCER is a consultant ear, nose and throat success in the case, an expert surgeon with a special interest in otology and rhinoplasty. in noise-induced hearing loss is With regard to medico-legal work, he attends court 4-6 times instructed. a year and compiles many medico-legal reports. A significant Such an expert is Yorkshire majority of the instructions accepted relate to noise induced based consultant ENT surgeon hearing loss (NIHL).

Mr Jack Lancer. Mr Lancer will Prior to retirement from the NHS in 2013, Mr Lancer held make an appointment with the the position of Senior ENT Consultant in South Yorkshire. individual concerned, conduct He was appointed as a consultant ENT Surgeon in 1988 a hearing test and write an and spent 35 years working in the NHS. While training he independent report. If areas of held positions in Sheffield, Cambridge and Zurich and was a contention can be agreed with consultant surgeon in Rotherham and Doncaster. the defence, the case may be He now only works in private and medico-legal practice, settled out of court by means of seeing patients and writing medico-legal reports based compensation. If not, the case around his specialist areas of interest, including otology may proceed to court and a (ear disease), rhinoplasty – including ‘nose jobs’ – and most resulting judgement. other aspects of general and routine ENT. With 26 years experience of Although predominantly servicing the areas of Rotherham, For further information contact medico-legal practice, Mr Lancer Doncaster and Sheffield, Mr. Lancer is prepared to travel for Mr Jack Lancer on 01777 817160 writes many hundreds of reports pre-arranged industrial deafness case appointments within a email jacklancer88@gmail.com each year and offers a short 150-mile radius. R waiting time for an appointment.

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Understanding traumatic brain injury in 2015

advances in diagnostic neuro-imaging

By DR EMER MACSWEENEY, CEO of Re:Cognition Health and Consultant Neuroradiologist

‹ TRAUMATIC BRAIN INJURY (TBI) is a worldwide public

health problem with enormous personal and societal impact. The direct medical costs for caring for patients suffering from acute traumatic brain injury are huge, but even larger are the indirect costs of lost productivity and long term care for TBI survivors.

At least 10 million people worldwide sustain TBI each year, of whom 10% sustain a fatal brain injury, 5-10 % serious permanent neurological deficit, 20 - 40% moderate disability and a significant number suffer subtle deficits.

Individuals suffering from mild traumatic brain injury frequently develop a mixture of cognitive behavioural and emotional difficulties, frequently with psychological symptoms of depression, anxiety, chronic pain and sleep disturbance. The cognitive functions of memory, executive function and processing speed are most commonly affected. Post concussion syndrome and post traumatic stress disorder (PTSD) are frequently described in individuals with mild and more severe TBI.

Primary and secondary Traumatic Brain Injury Injuries to the brain can be classified according to primary injuries, which occur at the time of the initial injury, and secondary injuries which occur later.

Primary injuries include skull fractures, intracranial bleeds, contusion or bruising of the brain, lacerations and diffuse axonal injury (DAI). The major cause of damage in DAI is the disruption of axons (neuronal connections that allow one brain cell to communicate with another). Although axonal injury is a primary injury it does not occur as a result of a direct impact on the brain, but as a result of traumatic shearing forces that occur when the head is rapidly accelerated or decelerated and usually results from rotational forces or severe deceleration. Vehicle accidents are the most frequent cause of DAI, but it also occurs in assaults and as a result of child abuse, for example in the shaking baby syndrome.

Recent advances in brain imaging allow much greater sensitivity for detection of DAI lesions, which can be missed or significantly underestimated unless appropriate imaging techniques are employed.

Secondary injuries occur later and include swelling, reduced blood supply to the brain and herniation of the brain.

Specialist Neuro – MRI imaging Confirming radiological evidence of brain injury in the presence of an apparently normal CT or initial MRI scan requires the correct use and interpretation of MRI neuro-imaging: Susceptibility weighted imaging (SWI) is a high resolution MRI

technique, 2 - 3 times more sensitive at high field 3Tesla (T) than 1.5T MRI for detection of micro-haemorrhages within the brain. Microhaemorrhages which can be detected long after the initial head injury and are the recognised hallmark for DAI. Diffusion weighted imaging (DWI) is employed to detect damage caused in the more acute phase of traumatic brain injury, demonstrating changes in the rate of microscopic water motion as the result of cell death due to DAI and other mechanisms of injury.

Diffusion tensor imaging (DTI) provides information on the structural integrity of white matter (nerves) in acute TBI for predicting long term outcome. DTI demonstrates evidence of white matter destruction due to TBA and correlates with changes in learning ability, memory and executive function. However, DTI has not yet been validated for clinical practice in the medico-legal setting.

Specialist MRI protocols can be employed to collect imaging data in a way that can then be manipulated, by an offline process, to provide volumetric analysis of different areas of the brain – in particular those areas involved in cognitive processes and memory.

Conclusion Longitudinal research is needed to fully understand the cognitive, neuro-behavioural and functional consequences of the pathological findings revealed by these new advanced imaging techniques.

Whilst assessment of primary and immediate secondary TBI is well understood, the longer term sequelae of brain injury is now being appreciated through advanced imaging techniques.

Head trauma must be considered as both an event and a process, where further damage occurs in the days and weeks after the initial event causing incremental and often significant impact on cognitive and physical function, affecting both the extent and trajectory of long term rehabilitation.

For those individuals suffering from the chronic effects of TBI, expert assessment by the most appropriate clinicians in the context of acute neuro-imaging and a bespoke rehabilitation programme is, arguably, as important as the initial acute assessment and intervention. q

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Psychological training for lawyers:

Lawyer-expert relationships and communication

By Dr Hugh Koch, Chartered Psychologist and Director, Mr David Bird, Chartered Psychologist, Dr Annette Farrant, Chartered Psychologist and Dr Tracey Jackson, Chartered Psychologist – all of Hugh Koch Associates LLP

‹ THE PROCESS OF conducting a personal injury claim includes

a key aspect of ‘quality management’, namely managing relationships with experts and communicating effectively with them. Below is a flow chart which illustrates the key aspects of the medico-legal decision making process from instruction of a claim to its resolution (Koch et al, 2015).

Towards continuing professional education for lawyers in psychological injury More training and professional development opportunities are needed to improve the knowledge and understanding of psychological injury amongst legal professionals.

Such CPD activity should focus on: • Clinical Issues • Understanding diagnostic, attribution and • prognosis issues • Reliability Issues • Consistency between data types; assessing • truthfulness; reasons and motivation to • exaggerate • Expert Issues • Independence and impartiality of experts; • communication with experts; obtaining opinion • clarification • Quality Management Issues • Effective communication between legal, • medical, claimant and defendant; refining and • improving medico-legal processes; improving • quality and monitoring time and costs.

At several of these steps in the medico-legal ‘trail’ it is crucial that the lawyer communicates effectively with their chosen experts. For example, he/she needs to understand how the expert uses classification schemes, assesses severity and pre-existing injury/symptoms and, through experience, appreciates the multidimensional approach that each expert utilises to assess reliability and truthfulness.

Micro skills of effective communication In addition to understanding the issues inherent in the lawyerexpert relationship, the lawyer will be faced with plenty of opportunity to communicate with experts in written form, by telephone and face-to-face. Lawyers have a high level of communication skills, utilising some or all of the micro skills of effective communication (see figure 2 opposite) resulting in their contact with experts being much more productive. www.yourexpertwitness.co.uk

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Figure 3

Psychological Injury • Main psychological disorders: differentiating factors • Proirity given to psychological issues: is it valued?

Psychology and Law: practical implications for civil litigators • Psycho-legal research and practice: an introduction

• Chronic pain: assessment, treatment and prognosis

• Psychological implications of CPR: impartiality, multi • source opinion forming and expert ethics

• Impact of pre-existing history: vulnerability, treated • depression, life events, egg shell skull

• Getting reliable, robust opinions from experts: facts versus • opinions

• Treatment or advice?

• Effective communication with experts: written, telephone, • face-to-face

• Reliability of information • Attribution plus ‘But For’ test • Reliability and truthfulness • GP medical notes: help or hindrance • Use of psychometric tests • Does anger mean ‘disorder’ or ‘disdain’ • Cognitive impairment and seeking neuropsychological • advice • Opinions after multifactorial evaluation

For example, in relation to psychological injury, several topics which fit into one of these four categories are shown in figure 3 above.

Conclusion Lawyers use a high level of skills to conduct their relationships with several different ‘clients’ or ‘customers’, both internal and external, and understand the way expert witnesses operate and provide impartial opinions.

The provision of training or CPD activities for lawyers is seen as crucial to the continuing development of civil litigation procedure and credibility. q • More information about training and CPD seminars can be obtained from Hugh Koch (hugh@hughkochassociates.co.uk) and at www.hughkochassociates.co.uk and also from Central Law Training (CLT) at www.clt.co.uk.

REFERENCES • Ivey A E and Litterer J A (1979) Face to Face Interpersonal • Communication. Amherst. Mass • Koch HCH, Newns K and De Haro L (2015) Medico-Legal Evaluations.

• Expert Witness Journal. Spring

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• Questioning experts: getting greater clarity from Part 35 • questioning • The politics of the Joint Opinion: ensuring the expert • understands his/her role • Are Single Joint Experts more impartial: the ‘push and pull’ • on SJE’s • Cross examining an expert’s report: how to conduct a • robust critique of reports • The psychology of reliability, consistency and truthfulness: • who detects deception?

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