Your Expert Witness Issue No. 34

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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

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 www.yourexpertwitness.co.uk

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contents IN THIS ISSUE 7

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Opening Statement

NEWS 9 Law Society proposes changes to employment tribunal system 9 Digital technology can have its uses in a pen-and-ink world 9 Expert witnesses – at the cutting edge ENVIRONMENTAL & ECOLOGICAL IMPACT ASSESSMENTS 10 Impact Assessments provide a clearer picture 10 New approach to newt conservation could benefit development – and newts 11 The ecological expert witness ANIMAL WELFARE & BEHAVIOUR 13 Experts are called upon in a multitude of cases 13 Changes to dog legislation affect owners 14 You can’t afford to be complacent about compliance 15 MPs to inquire into RSPCA's role as prosecutor 16 Changes result from RSPCA’s own review

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FINANCE 17 Accurate statistics needed to fight fraud, says panel 17 Loss of profits Vs business value MEDIATION 18 Forensic accountancy has led to a specialism in mediation for Chris Makin CCTV ANALYSIS 20 Met staff gain CCTV qualification 20 Show and shame – a new use for the cameras 20 Police film themselves to help avoid doubt 21 Complex, high-profile cases are this company’s stock-in-trade CARBON MONOXIDE POISONING 23 In Carbon Monoxide cases, all is not always as it seems TRANSLATION & INTERPRETING 24 Interpreter and translator racks up over 2,000 hours of legal assignments 25 European database project nears completion 25 First draft of international standard presented to ISO

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WILLS, LEGACIES & CHARITABLE BEQUESTS 27 Income from legacies continues to grow, latest figures show 28 Fan’s legacy will transform football club 30 Vital help for victims and witnesses 30 Helping injured service men and women through comradeship and challenge 31 Government joins ‘living legends’ to urge will-writers to Remember A Charity 32 Briton’s ‘young-age pensioners’ – the older they get, the younger they feel 32 Enriching the lives of people with learning disabilities FEES & PAYMENTS 33 How to get paid promptly as an expert witness in the UK

Your Expert Witness Suite 2, 61 Lower Hillgate, Stockport SK1 3AW Advertising: 0161 710 3880 Editorial: 0161 710 3881 Subscriptions: 0161 710 2240 E-mail: ian@dmmonline.co.uk Copyright Your Expert Witness. All rights reserved. No part of this publication may be copied, reproduced or transmitted in any form without prior permission of Your Expert Witness.

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MEDICAL ISSUES 37 Medical Notes

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NEWS 39 Insurance industry and the lawyers: keep your friends close…

39 Another NHS trust recommended for special measures CLINICAL NEGLIGENCE 41 APIL takes up the cudgels on clinical negligence fees 41 DoLS in need of urgent review, says BMA DNA 42

The ‘eureka! moment’ that changed crime detection forever

ARTHROPLASTY 43 Some legal aspects of arthroplasty 45 Personal injury claims 45 Informed consent in hip and knee surgery PAIN MANAGEMENT 47 Pain after personal injury?

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WHIPLASH 49 Orthopaedic expert looks further than most into WADs NOISE INDUCED HEARING LOSS 51 Hearing aids: NHS cuts lead to call for defendants to pay LIMB AMPUTATION 52 NCEPOD publish report on limb amputation LIMITED SCREENING REPORTS 55 How Somek & Associates are saving their clients time and money BRAIN INJURY & REHABILITATION 57 Post-concussion syndrome – the debate 58 Early intervention is the aim of the code 58 Brain injury and the law – new factsheets available

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DENTAL & MAXILLOFACIAL ISSUES 61 Your dental expert witness – profiling Professor Paul Tipton 62 Oral and maxillofacial surgeons have a dual expertise 62 Eminent maxfax named among most influential Londoners PSYCHOLOGICAL ISSUES 63 Air fire passengers to seek redress for psychological trauma 63 BPS calls for psychological help for refugees PHYSICAL & PSYCHOLOGICAL EFFECTS OF SCARRING 65 Being scarred needn’t mean being scarred for life PLASTIC SURGERY 66 A blend of qualification, experience and analytical desire 67 South American implants manufacturer has CE Mark suspended A to Z WEBSITE GUIDE 34 Our A to Z guide to the websites of some of the country’s leading expert witnesses.

EXPERT CLASSIFIED 68 Expert Witness classified listings 71 Medico-legal classified listings www.yourexpertwitness.co.uk

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Opening Statement [ A MERSEYSIDE MP who has come to prominence following her appointment to Jeremy Corbyn’s

Shadow Cabinet in a new role as Shadow Minister for Mental Health originally attracted public notice as a campaigner for stricter rules on dangerous dogs. Luciana Berger’s campaign bore fruit and changes came into force last year extending the liability of owners. A major driving force of Ms Berger’s energies was the fact that owners were perceived to ‘get away’ with their dogs attacking and even killing children because the offence happened on their own premises. Now the location of the offence is immaterial. We offer some light on the subject.

• The other side of attacks by animals is cruelty to animals. For nearly two centuries prosecutions for animal cruelty have been brought by the RSPCA, but there are now calls for the roles of investigation and prosecution to be separated. The RSPCA itself pre-empted the calls with its own review, the Wooler Review, which it has voted to implement.

• September saw an annual gathering of expert witnesses on all kinds of subjects as the Expert Witness Institute (EWI) held its conference at the Church House Conference Centre in Westminster. It was the 15th annual meeting of the EWI, which has seen attendances grow. This year over 190 delegates attended – a record – and debated a wide range of subjects.

Among the subjects close to the hearts of expert witnesses are, of course, the effects of cuts in the civil justice system and so-called ‘hot-tubbing’. That subject took the form of a celebration of the 800th anniversary of Magna Carta and revolved around the question ‘was Runnymede 1215 the first hot tub?’.

The institute has been going since 1996 and so next year will see its 20th anniversary. Your Expert Witness will no doubt be there again, renewing old acquaintances and making new friends.

• The post-conference dinner was entertained – if that is the right word – by a narration around the life of Harold Shipman, among others. Shipman forged the wills of a number of his victims – an action which led to his detection – and it was a solicitor who alerted a relative to the seeming inauthenticity of one such will.

Solicitors are also being asked, by both government and their own professional body, to alert will-makers to the possibility of extending their charitable giving beyond their lifetime by leaving a legacy. This year’s Remember A Charity in Your Will Week, also in September, was the most successful to date.

• Shipman’s criminal activity took place before the proliferation of CCTV, however it is unlikely such devices would have helped catch him, as his crimes took place inside people’s homes. Use of such evidence is now widespread and has helped in the solving of many crimes, as well as exonerating innocent people. Analysis of CCTV also helps in ascertaining the facts in many road traffic accidents. The police routinely wear bodymounted cameras and are now trialling head-mounted devices, which give a more accurate view of what an officer is actually looking at.

• The forensic work that did help trap Shipman involved the scrutiny of his computer by forensic experts – discovering changes made retrospectively to entries. Analysis of computer records is nowadays routing in the detection of fraud and other activities of the forensic accountant. The forging of signatures on cheques and wills was once the stock-in-trade of detective stories, with family fortunes being misappropriated and legitimate heirs being deprived of their inheritance. While much financial crime is now digitalised, there is still a role for the expert who can spot a forged signature. More chillingly, they can also help apprehend blackmailers and others issuing threats. q

Ian Wild

Ian Wild, Director of Business Development Your Expert Witness

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Law Society proposes changes to employment tribunal system [

UNLAWFUL EMPLOYMENT PRACTICES will continue to go unpunished unless the tribunal system is overhauled, the Law Society has warned. The body representing solicitors has published proposals to transform the employment tribunal structure to benefit employees, employers and the administration of justice.

They include a new employment tribunal structure, where claims are dealt with flexibly, depending on their intricacy and the financial stakes involved, and all employment law disputes will be dealt with in a single jurisdiction consisting of four levels.

According to the proposed structure, simple cases such as handling unpaid wages claims would be dealt with on a paper basis in the lowest level, while more complex cases – such as multi-strand discrimination cases – would be heard by an experienced judge in level four.

That, says the Law Society, would create an efficient system where employers and employees could get a feasible recourse. In addition, alternative dispute resolution exit points would be available throughout the system.

Law Society president Jonathan Smithers said: “Employment tribunals must work for employers and employees. People should not be discouraged from bringing legitimate claims or from opposing them because of the cost or complexity associated with the process.

“Our proposed system would be easy for the public to use – as there would be a single entry point – and would make sure that cases are dealt with in the most appropriate way. The single jurisdiction would increase awareness of different types of alternative dispute resolution.”

The Ministry of Justice is currently conducting a review into the introduction of employment tribunal fees. The fees were intended to

Digital technology can have its uses in a penand-ink world [

MUCH OF THE PUBLIC perception of expert witness work in the financial – and particularly fraud – sector focuses these days on the detection of technological malfeasance by technological forensics. There is, however, still a thriving criminal body of work involving the traditional means of fraud and misrepresentation by the traditional pen and ink.

That means the old fashioned graphologist or handwriting expert still has an active part to play in uncovering such crime. The equipment used, however, is every bit as advanced as those analysing the digital wizardry of the most technological of experts.

The most readily recognised piece of equipment in uncovering handwriting fraud is the electrostatic detection apparatus (pictured).

According to handwriting expert Kathryn Thorndycraft: “The electrostatic imaging process provides a considerable advance in performance over that possible with oblique lighting, often detecting marks not thought to be present after the most careful visual examination. This non-destructive test readily permits the fast and routine examination of all suspect documents.”

More minute examination is possible using a stereo microscope. So, it is not just the computer experts in the multimillion-pound digital world who use modern technology to catch out the fraudsters. q

transfer the cost of running the employment tribunal system to users and to encourage employers and employees to resolve disputes without going to tribunals. However, people who have lost their job and are facing financial uncertainty are often unable to pay the fee.

Jonathan Smithers continued: “Ministry of Justice statistics show that, since the introduction of employment tribunal fees, the number of disputes proceeding to the tribunal has collapsed by over 60%. The £1,200 that a claimant must pay for most types of cases is close to the average monthly salary, putting the tribunal well beyond the reach on many people – particularly those on lower incomes.” q

Expert witnesses – at the cutting edge [THURSDAY 24th September

2015 marked the 15th anniversary of the Expert Witness Institute (EWI) Annual Conference. The conference returned once more to the superb venue at Church House Conference Centre in Westminster and was by general acclaim a great success.

As always the conference was very well attended by EWI members, representatives from the legal profession, practising expert witnesses and members of the press. Your Expert Witness were proud to have been one of the event sponsors. Over 190 delegates were in attendance throughout the day, a record for the EWI conference.

The conference, expertly chaired by EWI governor, Mrs Amanda Stevens, covered a wide range of topics aimed at educating and informing the delegates. The conference paid special attention to the anniversary of the Magna Carta with the opening panel session, chaired by Michael Napier CBE QC, addressing the question ‘Was Runnymede 1215 the first hottub?’.

Over the course of the morning, topics included CJC proposals for on-line dispute resolution; new challenges for lawyers, experts and courts; and Austerity and Civil Justice. The EWI chair, Sir Anthony Hooper, updated delegates on what has been a very exciting year for the Institute. The morning session concluded with His Hon Judge Allan Gore QC who gave his ‘View from the bench’.

A packed afternoon schedule included a fascinating Forensic Sciences panel session on ‘Dispelling the fiction of the perfect crime’ and a most informative costs session with Peter Hurst and Nicholas Bacon QC. Donald Fowler and Patrick Allen gave their perspective on the recent Whiplash Reforms and the afternoon concluded with a lively presentation on hot-tubbing.

At the post conference dinner, fresh from the Edinburgh Fringe, Dr Harry Brunjes and Dr Andrew Johns presented ‘Dial Medicine for Murder’ a fascinating dissection of the notorious careers of Dr Harold Shipman and Dr John Bodkin Adams – the two most infamous physicians of the twentieth century.

Next year is the EWI’s 20th anniversary and plans for a very special conference are already underway. q www.yourexpertwitness.co.uk

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Impact Assessments provide a clearer picture [

MORE AND MORE members of the public are becoming aware of the use of Environmental Impact Assessments as part of the planning process – and even before the process begins, as campaigning tools by lobbies in favour or opposed to a development.

Nationally, the HS2 proposals have led to a raft of bodies – from wildlife groups and conservation charities to local authorities and business groups – submitting their own ideas on what the EIA should contain and what it should say.

Locally, proposals for the licensing of shale gas extraction have led to prolonged planning hearings and a great deal of emphasis on the environmental issues – put forward by those both for and against the process.

According to the Institution of Civil Engineers: “Environmental Impact Assessments provide local planning authorities with better information enabling them to make more informed decisions about whether permission should be granted and to allow imposition of more appropriate conditions and obligations to mitigate possible negative impacts.”

Within that process there lies a specific element of an Ecological Impact Assessment (EcIA). These are a key part of the EIA. The Chartered Institute of Ecology and Environmental Management – the professional body that represents and supports ecologists and environmental managers – has published guidelines for EcIA The guidelines provide “…a recommended procedure for the ecological component of Environmental Impact Assessments. They also set standards for the assessment of the ecological impact of projects and plans, so as to improve the consideration of the needs of biodiversity and thereby reduce the impacts of any development.”

There is a widespread perception that an EcIA is a tool used by environmentalist to prevent developments. Cynics cite apocryphal stories of developments stalled or even disallowed because of the presence of beetles or newts.

In truth EcIAs have been used in many instances to bring parties together to find solutions. By arriving at an accurate description of what is actually there, a sensible and workable decision can be arrived at. q

New approach to newt conservation could benefit development – and newts [AN INNOVATIVE APPROACH to protecting

one of England’s most threatened amphibians could enhance their population – and reduce delays to major building projects. Natural England is launching a pilot project that will bring more flexibility to the licensing system where great crested newts are involved, while providing more of the weedy ponds they favour.

The aim is to take a more strategic approach to the conservation of newts, ensuring that resources are focused on newt populations and habitat that will bring the greatest benefits to the species. At the same time it will make the licensing process much more straightforward for developers on sites where newts are present.

Under the current system, developers on sites with great crested newts are required to carry out a survey and assessment before applying to Natural England for a licence to move the animals so building work can begin. This process is costly and time-consuming and, because it is restricted to the active season of great crested newts, presents a real risk of delay for development.

The ground-breaking approach, to be trialled by Natural England and Woking Borough Council in Surrey, will involve survey work to establish the size, location and connectivity of great crested newt populations. For this purpose, testing for traces of newt DNA in pond

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water has already been undertaken across Woking to establish where the amphibians live. This is a new survey technique which will both improve knowledge of the species and save time and money on survey costs.

The survey information will be used to produce a local conservation plan for the newts. The plan will retain, enhance and link up the most significant populations of newts, identify areas where development will have the least impact and specify where new habitat will be created to ensure a healthy overall population.

Andrew Sells, chairman of Natural England, said: “This innovative pilot in Woking is an exciting opportunity that I hope will bring significant benefits for conservation. The current licensing system for European Protected Species in England is quite a rigid way of protecting great crested newts, placing the emphasis on individual newts, rather than the species as a whole.

“By making the system more flexible and strategic, it will enable us to establish habitat for great crested newts, where their populations will most benefit from being in a wide network of habitat, rather than being squeezed in around development. Alongside creating strongholds for great crested newts, this groundbreaking approach will streamline the delivery of much-needed development and lift constraints on the layout and design of development land.” q

The ecological expert witness [THE SCIENCE OF ecology and the law and practice of nature

conservation are central to many areas of development. The EU Birds and Habitats Directives, through their transposition into UK law, have raised the bar for the quality of evidence preparation.

A good ecology expert witness can make a significant difference to the prospects of a project’s success at an Inquiry or Examination in Public, or in the courts.

Choosing the right witness is crucial. A sound grounding in the constantly evolving law of planning and nature conservation, and an ability to articulate an argument in the face of serious cross-examination, are the key requirements. Independence of view is crucial, and experience gives invaluable confidence. Relatively few professional ecologists have mastered the art of giving evidence in a professional and objective way, in a manner that engages the Inquiry without sounding flippant, dry or biased.

Success hangs on the credibility of the position adopted by the witness – it is counterproductive to stubbornly assert a position unless evidence can be brought to bear to underpin it.

Ecology is a vast field. In recent years expert witnesses from Hampshirebased Ecological Planning & Research Ltd (EPR) have presented Inquiry evidence on a wide range of matters. These have included: the historical ecology and classification of Ancient Woodland; the impacts of air pollution on the habitats of sensitive European designated habitats; the effect of trunk road bypass cuttings on bat commuting and foraging; the creation of bat bridges and the first UK dormouse bridge; determining the potential effects of recreational pressure on sites forming part of the Thames Basin and Dorset Heaths and securing impact avoidance measures; and the implications of port developments for European designated estuaries and their marine fauna and migratory birds.

Thorough research, detailed quantitative or qualitative assessment and a critical approach to interpreting published information, will underpin any argument. For example, in relation to a waste disposal installation in Norfolk, detailed EPR mapping of vegetation communities showed that the sensitive wet heathland vegetation in an SAC had not only been wrongly identified and located, but that the predicted levels of air pollution deposition were too small to affect the potentially sensitive areas.

In another case, through the collation and analysis of heathland visitor access patterns and detailed GIS mapping, EPR’s expert witness was able to show that concerns over future recreational activity on a Dorset Heath, by the potential employees of a new business park, could be adequately met by alternative open space provision and access management measures, overcoming objections at Inquiry by Natural England and the LPA. Inquiries can be exhausting – EPR’s ecology witness at the Dibden Container Terminal Inquiry in Southampton was cross-examined by three QCs for two weeks. Retaining such complex evidence over a prolonged period, including weeks or months leading up to an Inquiry, requires considerable powers of intellectual and physical stamina.

Equally, it is essential that the ecology witness has thoroughly understood every possible aspect of the case, including that of all parties, and logically and carefully presented arguments and counterarguments in a way that will help an Inspector or Assessor to reach a suitable informed conclusion. Such evidence will also greatly assist a Judge should the case go the High Court, and indeed EPR’s evidence has been tested and upheld both in the High Court and more recently in the Court of Appeal. q

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Experts are called upon in a multitude of cases [THE RANGE OF cases where experts in animal welfare or

animal behaviour may be called to prepare reports is wide, covering offences against animals – be they pets, farm animals, wild animals or companion animals – or offences involving attacks by animals for which their owners may be held responsible.

The principal piece of legislation involving offences against animals is the Animal Welfare Act 2006, which came into force in England in April 2007 and in Wales a month earlier. It increased existing penalties and introduced new ones to tackle ‘acts of cruelty, neglect, mutilation, tail docking, animal fighting and giving pets as prizes’.

The Kennel Club adds in its guide to the law for dog owners: “In addition to this it introduced a duty of care for all pet owners to provide for their animals a suitable environment, a suitable diet, the ability to exhibit normal behaviour patterns, protection from pain, suffering, injury and disease and consideration of the animal’s needs to be housed with, or apart from, other animals.”

The Animal Welfare Act 2006 applies in England and Wales only. In Scotland the Animal Health and Welfare (Scotland) Act 2006 makes similar provisions, as does the Welfare of Animals Act (Northern Ireland) 2011. q

Changes to dog legislation affect owners [

LAST YEAR, AMENDMENTS to the Dangerous Dogs Act were introduced under the Antisocial Behaviour, Crime and Policing Act. Recently, sentencing under those amendments came into force. The new laws extend both the scope of the Act and where offences can be committed.

According to pet information exchange Pets4Homes: “The original law effectively bans ownership of four breeds of dog within the UK – the Fila Brasileiro, the Dogo Argentino, the Japanese Tosa and the Pit Bull Terrier. However, it also covers the process in law to govern what happens to any dog of any breed that is considered to pose a risk to people, and this is something that not all dog owners are aware of.”

On the changes to the legislation the site says: “Section 3 of the Dangerous Dogs Act… is relevant to all dog owners, but previously only applied to incidents that happened within public places, such as in the street or in the park. However, the amendments to the act that came into force on 13 May means that the ‘in a public place’ caveat has now been withdrawn, and the ‘dangerously out of control’ element is relevant for dogs regardless of where they are, even within your own home or enclosed garden.”

There are many reasons why a dog may exhibit dangerous behaviour – not simply because it belongs to a certain breed, as defined in Section 1 of the Act. Indeed, many see that as demonising the dog itself. In some cases the owners may deliberately inculcate aggression either by encouraging it or even by administering drugs!

One animal behaviour expert who takes a more measured approach is David Martin. David said: “It is very important not only to consider the type of dog – as in Section 1 cases – but also to ensure that

the causes of an attack are fully assessed.”

A behavioural assessment of the dog should also be undertaken, including what measures may be stipulated by a court were they to give a contingent destruction order.

“This is never undertaken by the prosecution,” David Martin said, “and can significantly assist both the defendant and the court.”

He continued: “The other point that should be made is that dogs that have been involved in a serious attack should be tested for illegal drugs and stimulants and a welfare assessment of the dogs made, in terms of their welfare prior to the attack occurring. This is not routinely carried out by prosecutors, despite both of these being aggravating factors in the new sentencing guidelines.” q

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You can’t afford to be complacent about compliance [BIRMINGHAM-BASED Food and Farming Compliance Ltd (FFC) is

an agri-food consultancy offering a unique set of skills and expertise to the legal profession and others.

From the outside, agricultural and food safety law and the environments in which they operate are not easily understood. In particular, the law governing livestock identification and traceability, animal health, animal welfare and EU farm support mechanisms is technically complex and develops constantly – and the operation of livestock industry itself is far from simple.

FFC’s breadth and depth of experience and expertise in these areas is not readily found elsewhere. Their consultants’ advice is given in the context of an insider’s understanding of both the agri-food industry and government policy towards it.

The company’s consultants have diverse backgrounds including central and local government, the private and voluntary sectors and academia.

They have a wide spectrum of experience, which is particularly strong in the enforcement of domestic and EU legislation in animal health and welfare and food safety including in the investigation and prosecution of offenders. Consequently, they are in a strong position to give informed advice to, or to appear for, those preparing or presenting cases in criminal, or indeed civil, proceedings in which animal health, animal welfare or food safety are at issue.

Several FFC consultants are veterinary surgeons. Their professional expertise, drawn from working in clinical practice, government, the voluntary sector and in higher education, covers livestock production, pet animals, horses, food safety and veterinary professional conduct.

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FFC directors Mike Steel (left) and Nigel Durnford The horsemeat crisis in 2013 gave fresh impetus to the enforcement of existing legislation to ensure the integrity of food supply networks. Two FFC consultants served as subject matter experts on the Elliott Review.

Subsequently, dealing with the risks of food fraud has become a significant part of the business. FFC’s consultants are leading authorities on the nature of food fraud, being consulted on the subject by, among others, the national news media.

FFC also operates a wide training portfolio for the public and private sectors. This includes, inter alia, investigation and prosecution skills in animal health and welfare and food fraud awareness, avoidance, investigation and detection. q • Further information on the backgrounds of all FCC’s consultants can be found at www.foodandfarming.co.uk/partners.

MPs to inquire into RSPCA's role as prosecutor [

THE DUAL ROLE of the RSPCA as investigator and prosecutor in cases of animal cruelty has been brought to the fore once more with the report – initially from the BBC – that MPs will be inquiring as to whether it is appropriate that the society and other animal welfare charities should continue to bring prosecutions in England and Wales or whether, as is the case in Scotland and Northern Ireland, the state should make decisions on prosecutions following investigation by the charity.

The move was announced by Neil Parish MP, chair of the Environment, Food and Rural Affairs Select Committee. Mr Parish told the BBC that it is important to ensure the ‘right cases’ are taken to court.

“Sometimes there are cases which we feel they shouldn't have prosecuted on. Other times we would like to know why they didn’t prosecute,” he said, adding: “They need to balance what they do as an animal welfare organisation with campaigning activities.”

That mention of campaigning activities is thought by some to indicate the inquiry is politically motivated, stemming from the RSPCA’s activities in pursuing prosecutions against hunts, including the Heythrop Hunt in Oxfordshire, David Cameron’s local hunt. In 2012 the charity secured convictions on 12 counts out of the 52 it brought.

The RSPCA criticised DEFRA for plans to resume the culling of badgers in Somerset and Gloucestershire for a third year and add an extra cull zone in Dorset

The RSPCA has been outspoken in its criticism of the move to amend the Hunting Act, calling the plan to use a statutory instrument to enact the change “…tantamount to abuse of power”. It since labelled the decision to postpone the vote at the last minute “…nothing more than a sneaky tactical move”.

It has since criticised DEFRA for plans to resume the culling of badgers in Somerset and Gloucestershire for a third year and add an extra cull zone in Dorset.

RSPCA assistant director of public affairs David Bowles said in August: “We are saddened but unsurprised at the restart of the badger culls but to extend the number of cull

areas further is alarming - especially when the last two years of culls have been such a failure. This action is flying in the face of public and scientific opinion.”

In a number of cases outside of the fox hunting controversy, the RSPCA has either lost or been forced to drop prosecutions against people it has accused of cruelty.

Sara-Lise Howe is a barrister who has defended many clients in such prosecutions.

She told the BBC: “The people making decisions are not solicitors or barristers. In state prosecutions there are codes of practice which have to be followed, where prosecution is a last resort. But there is no way to check the RSPCA follow them.” q

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Changes result from RSPCA’s own review [

THE RSPCA’S INVOLVEMENT in bringing prosecutions for animal cruelty has been the subject of an investigation in the past – then at its own behest. In December 2013 the charity commissioned former CPS Chief Inspector Stephen Wooler to carry out a review of its prosecution procedures. Mr Wooler’s report, published in October last year, made 33 recommendations.

The RSPCA’s then-chairman Mike Tomlinson said at the time: “This report underlines the vital work undertaken by the society and demanded by the public to investigate animal welfare issues in England and Wales, but the RSPCA accepts the need to adapt its approach to meet modern expectations of transparency and accountability in law enforcement.

We are now considering the report’s recommendations in detail and steps are already underway to implement some of these.”

In July this year the RSPCA’s ruling council announced it had agreed new processes based on recommendations in the Wooler Review.

In a statement the RSPCA said: “RSPCA trustees this week agreed to pass cases involving traditional hunts to the police and CPS to prosecute, following initial investigation to determine the quality of the evidence. However, trustees agreed to reserve the right to proceed with such investigations if either the police or CPS decline to take the matter up.”

The RSPCA’s head of public affairs, David Bowles, added: “We have listened to Stephen Wooler and have acted on his recommendation to adopt a clear policy on how we deal with cases specifically against traditional hunts.

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The RSPCA have agreed to pass cases involving traditional hunts to the police and CPS to prosecute

“We will still look into allegations involving traditional hunts before passing the evidence to the police, who will be invited to complete the investigation before handing the case to the CPS. If the police decline to conclude an investigation the RSPCA reserves the right to complete the investigation and deal with any prosecution required itself.

“We will still investigate other individuals for alleged breaches of the Hunting Act and we have successfully used the Act previously to prosecute offenders with no hunt connections who have used their dogs to torture and terrorise wild animals.”

Trustees also agreed to the introduction of new processes in relation to two other areas where Stephen Wooler recommended some adjustment to the society’s approach.

With regard to cases involving animal sanctuaries, the RSPCA will introduce a process whereby prosecution decisions are reviewed internally by the head of prosecutions and the chief legal officer before any proceedings are instituted.

They also agreed that the RSPCA will continue to investigate farm animal cases – including those involving members of the RSPCA assured scheme – but cases involving serious welfare breaches may be referred to Trading Standards or Animal Health. If they decline to take the matter up, the RSPCA would reserve the right to institute proceedings itself. q

Accurate statistics needed to fight fraud, says panel [

THE independent Fraud Advisory Panel has called for a review of official statistics to improve efforts to fight fraud. The watchdog wants the government to review the method used to collect official fraud statistics and warns that the new pension reforms could provide another avenue for unscrupulous fraudsters to target the elderly.

Speaking in July, its chairman David Kirk said: “Incomplete statistics leave fraud victims disadvantaged and hide the true level of economic crime in this country. Without a sound understanding of the amount of fraud and who it is hurting, adequate police resources cannot be applied to tackling the problem.

“The system for collecting fraud statistics remains fundamentally flawed, and unless the true value is revealed the Home Office is unlikely to step up its efforts in this area.

“The panel believes that a change in methodology would very likely show that crime in the UK is in fact rising, not falling. This is because Home Office statistics currently exclude the very large

number of reports from industry – specifically credit and debit card fraud.

“The Office for National Statistics is already upping its game in this area, and we urge the Home Office to do the same.”

The statement echoes research carried out by the panel, which shows that fraud victims often have little knowledge or understanding of the routes available to them to recover their money – either through the criminal or civil courts or by other means. In particular, small businesses and individuals find getting the right advice very confusing.

David Kirk continued: “The UK sorely needs a national task force focussed on ‘scams’, that can give new focus and vigour to the fight against fraudsters who target the vulnerable, and the new pension reforms mean such a force is now needed more than ever before.

Only a well-informed, well-resourced and well-executed national approach will work in the fight on fraud.” q

Loss of profits Vs business value

By DEREK WILLIAMSON, Forensic accountant at Goddards Accountants

[

IF A BUSINESS is damaged as a result of wrongdoing, there are two ways in which the plaintiff’s damages can be measured.

The first is to calculate the plaintiff’s annual loss of profits and the second is to calculate the value of the plaintiff’s business at the time of loss – that being the amount that the plaintiff could have sold the business for at the time of the loss.

Using the loss of profits route, an accountant would forecast the annual profits for the damaged business based upon the industry and the conditions applying at the time – up until the date of the trial and on into the future. This valuation should also take into account the fact that the projected profits were by no means ‘riskless’.

Using the business valuation route, one would calculate as if the defendant were ‘purchasing’ the damaged business from the plaintiff at a ‘fair market value’ at the time of loss. This valuation would be equivalent to the present value of the cash flows that would accrue to the owner of the business over its lifetime. A risk adjusted discount is then applied to convert the projected annual cash flows to a single lump sum.

Where the claim is for personal injury, it should be noted that significantly higher damage claims can be made under the lost profit method than under the business valuation method. This is because the business valuation method imagines that the plaintiff would have sold the business immediately prior to the damage happening, thus attempting to estimate the proceeds the plaintiff could have received at that time.

To the extent that no sale was actually contemplated, a loss calculation based on the value of the business can, in those circumstances, lead to an amount far different than would have been achieved by the plaintiff had they continued to operate the business.

Indeed, relying solely on the business valuation approach can be risky if there is any doubt as to the permanency of the loss. In these circumstances, the preparation of a detailed loss of profits calculation on a year by year basis is essential.

It should be noted that the two approaches often yield similar damages calculations. When they do not, it is usually due to the factors noted above. HM Courts may also subjectively prefer one approach to another. Experts should therefore consider calculations under each of the above methods and adopt the approach that best fits the facts of the case. q www.yourexpertwitness.co.uk

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Forensic accountancy has led to a specialism in mediation [CHRIS MAKIN is a chartered accountant with a vast range of

experience, firstly as a general practitioner and then for well over 20 years as a forensic accountant and expert witness. He is also the former National Head of Litigation Support in a national firm. He acts frequently for claimants/applicants, defendants/respondents and as a single joint expert and has given expert evidence over 70 times.

For many years Chris was a contributor to the Kemp & Kemp publication The Quantum of Damages. His chapter on Loss of Profits for the Self-Employed & Family Company Director is an admirable summary of how businesses work and is of benefit to

Housing crisis solved! [ AN EXAMPLE OF creative mediation by Chris involved a plumber

and a building company who had entered into a joint venture to build a large executive house. The plumber had supplied some labour and the land, while the builders provided all the construction materials and labour.

Chris relates: “The house was finished, but could not be sold because the parties could not agree on the value contributed by each and therefore how to share the proceeds; yet both sides were complaining that they had no money!

“I suggested that we should mediate in the empty house, using garden furniture, and by compiling a spreadsheet showing stage by stage what each had contributed – the divisible profit was soon agreed!” q

lawyers in many fields, not just personal injury. Although it is now out of print, Chris is happy to provide it free on request.

Chris offers an initial review of any case, without obligation to instruct him. If the matter doesn’t proceed, he makes no charge.

He destroys the papers and he doesn’t even sulk! If the matter does proceed, the time spent on initial review is included in the fee quoted.

Only when terms are agreed is a contractual relationship established.

Chris’s main area of practice now, however, is as a commercial mediator, with expert determinations and forensic assignments added for good measure.

Mediation is now a very important stage in the litigation process and it usually results in a prompt settlement to even the most complex and highly charged disputes. Chris has mediated some very challenging cases – including some where the parties even refused to sit in the same room at the start – yet his personal settlement rate is running at about 80%.

Chris Makin might just be the mediator who could help you and your clients to resolve even your most difficult litigation cases.

As mediator he has dealt with many types of disputes, including business purchase and sale, partnerships, contractual failings and professional negligence – all the kinds of dispute you would expect an accountant to be able to help with. But he has also mediated in disputes in the fields of construction, sub-contracting, rights of way, boundaries, legal fees, playwrights, fraud, housing disrepair, expensive motor cars, horrendous family probate disputes, and many more.

One of his specialisms is housing disrepair. Many public housing bodies and their tenants have chosen to appoint Chris Makin as their mediator, because he can do much to help both parties in this difficult area. q

Nursing a grievance [

A CASE STUDY by Chris concerns two ladies who were in partnership running a nursing home. One had provided virtually all of the capital to buy and convert a huge Victorian property, the other was a nurse and essential to the business. But they couldn't work together any longer.

“I set up a spreadsheet with all key figures from the business accounts and as agreement was reached on such matters as partners’ salaries, interest on capital, profit shares, who was to take which asset and which liability out of the partnership, their closing capital account balances were calculated.

“Each was able to approach me with ‘what if’ proposals. The parties were able to reach agreement, knowing exactly how much each would be able to take out of the business.” q

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Preparation, preparation, preparation – it makes all the difference [

LITIGATION IS DEADLY serious: lawyers must prepare for it very carefully and that is a lengthy process. Mediation is different – or is it?

In his informative blog, Chris Makin outlines reasons why, although mediation does differ from litigation, preparation for it must be just as thorough.

“The biggest difference is the dynamics, because the parties are in charge of their own outcome. So having lawyers as gladiators – fighting the enemy and leaving blood in the arena – is not how it works. In litigation all decision making is in the hands of the judge, and so often the winner takes all. But because in mediation each side must be content with the outcome or they won’t agree to it, the lawyer has a very different part to play.”

That is where empathy and understanding become important, he explains. Lawyers must decide which of their clients’ arguments are worth running and which to leave in the background; and the lawyer must understand that the other side has arguments, too.

“When arranging a mediation,” he writes, “I send to both sides a confidential checklist which asks them to write down their strong points, their weak points, their best case and their bottom line, and so on; and it then asks them to pretend to be the other party and write down the same points.

“The point is that mediation is just as much about timing, strategy, information gathering and client management as it is about negotiation. Preparation takes time, research and effort.” q

A not so shaggy dog story

[

CHRIS’S PORTFOLIO includes the case of two men who had run a greyhound syndicate for some time, but had fallen out over unpaid kennel fees. They both wanted the dogs and bitches that would preserve the blood lines registered to them, but neither wanted to pay what they regarded as the other’s unpaid kennel fees under the rules of joint and several liability.

“I drew up a spreadsheet setting out all the animals, their values to be agreed and the syndicate's debts,” said Chris. “The values of the ‘assets’ were agreed, responsibility for payment of the debts was agreed and there were undertakings for reimbursement of any debts paid by the ‘wrong’ party. Each party became the unfettered owner of their dog dynasty.” q

Forensic accountancy can uncover a multitude of sins [CHRIS MAKIN is one of only some 35 chartered accountants

to have received the accolade of Accredited Forensic Accountant and Expert Witness from the Institute of Chartered Accountants of England and Wales; and the Association of Personal Injury Lawyers recognises him as an ‘expert 1st tier’.

His experience as an expert covers a wide range of subjects in all areas of law – civil, matrimonial and criminal.

In the civil sphere he has often acted as expert for one party or another in shareholder and partnership disputes, including the tracing and evaluation of diverted trade. Insurance claims are another common type of case, with insurers interested to learn whether there were signs of ‘strain’ in a business prior to a claim, such as following a fire, that might indicate foul play. In a number of cases behaviour immediately before the claimed-for event has contributed to claims being disputed.

Business interruption and consequential loss is another major part of Chris’s work, acting for the claimant, the defendant/ insurer or as a single joint expert. Whether caused by a factory fire, blocked access to business premises, theft of a customer list, death or injury of the ‘rainmaker’, or any other cause, he is required to quantify the ‘would have been’ but for the interruption. He has been complimented on his clarity of thought and opinions – by judges and those instructing him – on many occasions.

Other cases include product liability, intellectual property, director disqualification and taxation advocacy.

In the area of personal injury, Chris has acted in hundreds of cases, large and small. On average, over the past five years he

has acted 50% of the time for claimants, 30% for defendants and 20% as SJE. Acting for claimants, his figures are mostly accepted even after detailed review by the other side, but when acting for defendants he has often made significant savings.

In matrimonial matters, Chris works in areas of business and share valuations for assessment of assets when a break up occurs. Often the family company is the largest single asset to be taken out of the marriage by a spouse and its value can be a large component of the matrimonial balance sheet. Chris has vast experience of valuing family companies as party expert and, increasingly, as SJE, and can advise on tax-efficient ways of withdrawing them from the marriage. He is also experienced at locating hidden assets and diverted businesses.

In the areas of criminal law, Chris’s portfolio reads like a sensationalist TV real crime series.

Cases have included successfully exonerating the chairman of Barlow Clowes, the investment company that collapsed following a series of thefts, the prosecution of the perpetrators in the ‘mouldy chicken’ case, involving the resale of meat condemned as unfit for human consumption, theft, false accounting and taxation offences.

His ‘biggest failure’ involved a man caught importing cocaine using a light aircraft. Chris held an interview with the accused in Strangeways, but the case was hopeless and the man was jailed for 25 years. Interestingly, the instructing solicitor was the first solicitor jailed for not reporting suspicious transactions through his client account. Guess whose money he had been looking after! q www.yourexpertwitness.co.uk

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Met staff gain CCTV qualification [

A PC AND TWO PCSOs from the Metropolitan Police became the first officers to qualify for a new certificate in Producing Forensic Images for Evidential Purposes. The course, endorsed by Highfield Awarding Body for Compliance, is aimed at making the use of CCTV a professional forensic discipline in the same way as fingerprinting or producing DNA evidence.

The three are attached to the Westminster borough Visual Images, Identifications and Detections Office (VIIDO).

Its head, Detective Chief Inspector Mick Neville, commented: “It’s the first time the police have had a qualification for officers who gather CCTV and also takes away the notion that every single officer can – because they can’t.

It’s a move away from the idea that every officer can gather CCTV.” Around 100 VIIDO staff are expected to be taking the course by the end of the year. q

Show and shame – a new use for the cameras [ APART FROM THE use of CCTV as evidence in court, in a

growing number of instances the technology is being used to alert the public to offences and elicit memories from witnesses.

Over the summer the public mood was stirred by the release of CCTV coverage from a nursing home in Rossendale, Lancashire of three individuals throwing garden furniture and other items at two alpacas in the grounds of the home.

It transpired there had been a number of instances of the animals – Andean creatures the size of sheep and bred for their wool – being attacked and the home released the footage in the hope of identifying the culprits.

The public outcry at the treatment of the alpacas, who had been

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introduced to the home to provide companionship for the residents, led to three youths being referred to Lancashire’s Youth Offending Team and apologising to the owners and residents of the home. q

Police film themselves to help avoid doubt [

VIDEO CAMERAS HAVE an accepted and familiar role in identifying wrongdoing and in exonerating the innocent. They are now being used by police forces themselves to protect officers from being wrongly accused of misconduct – or worse.

That issue takes on an altogether more sinister tone when the officer concerned is a firearms officer, which is why a number of police forces are taking part in a pilot to identify whether chest-mounted or headmounted cameras are more suitable for firearms officers.

One of those forces is Staffordshire, which already uses around 560 body-worn video cameras, according to the Police Oracle news website.

Assistant Chief Constable Bernie O’Reilly told the publication: “We want to make sure that we get the best footage when we deploy with different equipment and in different circumstances. Body-worn video is very effective; it captures events as they happen, often diffuses potentially violent situations and provides speedier justice for victims as offenders are more likely to plead guilty.”

Following a similar trial, the Metropolitan Police is in the process of selecting a provider for 20,000 cameras to be rolled out across the force, the report said. q

Complex, high-profile cases are this company’s stock-in-trade [ MANY SERIOUS CRIMES – including murder, terrorism, rape and

armed robberies – are these days solved and their perpetrators brought to book with the aid of complex and technical analysis of CCTV, mobile phones and other media. The list of cases where convictions have resulted from such analysis is long and shocking. The techniques themselves are often ingenious and innovative.

That is the field of work of Stockport based Audio Video Forensics Ltd, a renowned forensic company involved in the improvement of audio video and still image evidence. For 21 years the company has provided its forensic service to law enforcement agencies, the military and private legal companies in this country and abroad.

Among the high-profile criminal cases where evidence has been provided by the company are the shooting of schoolboy Rhys Jones on his way home from football practice in 2007 and the two trials of serial killer Levi Bellfield – convicted of the murders of Marsha McDonnell and Amelie Delagrange in 2008 and Milly Dowler in 2011.

The techniques involved in their work range from the analysis of stills from video to the assessment of speed, height or distance from CCTV. The experts at Audio Video Forensics can enhance audio and video recordings, check for evidence of editing or tampering, restore damaged recordings and produce transcripts from poor quality recordings.

In addition to aiding in the conviction of the guilty, the company also act for the defence in helping to exonerate the innocent. In a highprofile case in Liverpool last year, they were able to demonstrate that

the accused was of a different height from the youth seen carrying out the attack in question resulting in his aquital.

They have also been appointed by defence lawyers to analyse audio recordings to offer an alternative transcript to that of the prosecution.

The dark world of Middle East conflict is also a place where Audio Video Forensics carry out their work. They provided evidence in the Daily Mirror fake Iraq photographs case that led to the departure of its editor Piers Morgan.

Away from the criminal law, the company have provided reports in road traffic accident cases – often for bus companies being sued by passengers.

Most recently, the company was engaged to analyse CCTV footage in the Glasgow bin lorry crash case. q

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In Carbon Monoxide cases, all is not always as it seems

by STEPHEN WALSH MSc C.Eng of S.A. Walsh Consulting Engineers & Expert Witness Limited

[ CARBON MONOXIDE (CO) poisoning

can occur almost anywhere because of a lack of ventilation. That could be at home, at work, on holiday or camping, in public areas, places of entertainment, hotels, or in marine, agricultural, camping and many other environments.

CO detectors need to be installed to warn occupants and users of gas appliances, failing electric appliances, internal combustion engines and even log burning fires. The use of CO detectors should reduce personal injury incidents from Carbon Monoxide, but they will not solve the problem of insufficient ventilation and incorrect maintenance.

CO poisoning can be one of the most difficult to prove. The evidence will need to stand up to examination in court. An Expert Witness on the subject needs to understand the complexity of CO within the environment of the incident in question and the victim’s ‘breathing zone’ within that environment. They also need technical knowledge and expertise in the operation of the appliance, together with its flue and ventilation arrangement: that is a non-medical investigation.

Several years ago, as part of my Master’s degree in Occupational Safety and Health, I undertook as a dissertation

A yellow flame from a gas oven indicates incomplete combustion CO is a by-product of all carbon fuels. All such fuels need clean air for complete combustion with minimal CO. When carbon fuels are burnt in engines, machines, gas appliances, biomass boilers or log fires, their exhausts contain the products of combustion gases which must be safely dispelled to the outside air.

When those products are drawn into the combustion process due to lack of ventilation, incomplete combustion occurs, producing increased levels of CO as a byproduct. Those elevated levels will become dangerous when inhaled.

The burning of gas in domestic ovens and cooking grilles can lead to CO poisoning. When a gas flame comes into contact with the frets of a grill, voluminous quantities of Carbon Monoxide can be produced. A similar situation occurs with unserviced ovens. A yellow flame indicates incomplete combustion. I have investigated cases where, during the winter months, victims had used cooking appliances in a kitchen with no ventilation.

a study of the Carbon Monoxide gas contaminating the breathing zone of gas fitters. It was done by monitoring their breath during their assessment for competence.

An interesting development from that research was the finding of secondary Carbon Monoxide contamination in the fitters’ environment, such as from tobacco smoke and being a passenger in a stationary vehicle in a traffic jam – inhaling the vehicle exhaust gases through windows and the vehicle’s ventilation system. So it can be seen that a victim’s poisoning might well be from causes other than a faulty appliance. q • Since 1984 Stephen Walsh has been instructed as an Expert Witness and given oral evidence in Civil and Criminal Courts in England, Wales and Scotland.

He has given oral evidence at the Central Criminal Court of England and Wales (Old Bailey) in gross negligence and manslaughter cases and at the Royal Courts of Justice, the Technology and Construction Court, regional Crown Courts and County Courts in litigation cases.

Exhaust fumes can also cause CO poisoning www.yourexpertwitness.co.uk

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Interpreter and translator racks up over 2,000 hours of legal assignments [

BASED IN SUFFOLK, Andrea Denby is a Hungarian-English interpreter and translator with over 10 years experience. She has been working as a legal registered interpreter for more than eight years and has now completed over 2,000 hours of court, tribunal and police interpreting assignments.

She has a thorough academic and legal education, having completed English and Hungarian undergraduate degrees in Budapest. Indeed, she used several languages and her own translations for her PhD thesis on a multi-lingual Hungarian author and completed her PhD at UCL in 2006.

Andrea studied English law part-time for many years at the University of Westminster and at BPP until 2012. Her legal education enables her to understand the seriousnness of what she translates and makes her value precision in her work.

Recently Andrea has further specialised in translating for work contracts, property sale contracts, financial checks and immigration documents. She works for the police directly, as well as through Language Line Services, and for the courts and the Home Office as an interpreter in immigration matters and asylum cases in which she is regarded as totally reliable and trustworthy.

Andrea enjoys proofreading which is something she undertakes increasingly these days. She occasionally teaches translation and this year has assessed and marked community interpreting students, including written legal DPSI exams and oral exams for the IoLET. She also undertakes work through agencies and can be found on the National Register and in the APCI directory as a member of the association.

Andrea is also a member of the CIoL and intends to extend her practice further into translating and proofreading in the field of civil law. q

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YOUR EXPERT WITNESS SPECIAL FEATURE: TRANSLATING AND INTERPRETING

European database project nears completion [ THE FINAL CONFERENCE of the LIT

Search project, which has been developing a pilot database of legal interpreters and translators for the EU’s e-Justice portal, will take place in Antwerp, Belgium on 9-10 November.

The project was set up under the Stockholm Programme 2009 to 2013, which was adopted by the European Council and is a roadmap for procedural safeguards in EU member states.

It has explored the modalities and practical features of such a database and will eventually link up the countries participating in the pilot project.

According to the description of the project on the website of the University of Leuven in Antwerp, which has co-ordinated the LIT Search project and is hosting its final conference, several EU countries have official registers based on admission examinations and the ministries of justice of those countries were invited to join the project as co-beneficiaries, as they have gathered experience in setting up and managing LIT registers.

In the UK the independent National Register of Public Service Interpreters has also joined the project as a co-beneficiary.

The Dutch register of sign-language interpreters is a special contributor to the pilot project, as it is the first time that signlanguage interpreters will be included in a database for legal interpreters and translators.

In the course of the pilot project several research sub-projects were conducted.

“In particular,” says the University of Leuven site, “the consortium partners describe their respective national systems governing legal interpreting and translation.

“The outcome of the research and the input from the presentations held at the project’s progress meetings will serve to further develop a model template to assist other countries that may want to link up to the LIT Search database at a later stage.”

At the conference, which will be held in English, the pilot database will be demonstrated. q

First draft of international standard presented to ISO [

ON 23 JUNE the European Legal Interpreters and Translators Association (EULITA) presented the first text for an international standard on legal interpreting (AWI: ISO 20228) to a meeting of Working Group 2 (Interpreting), during the ISO TC 37/SC5 meeting in Matsue, Japan.

Participants commented on the text which the EULITA executive committee had drafted, following the brainstorming workshop with EULITA member associations in Opatija, Croatia, during the recent General Assembly of the association in March.

EULITA members and legal interpreters interested in the further progress of the draft standard have been invited to join their national ISO mirror committees and to contribute to its content. q www.yourexpertwitness.co.uk

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More and more major charities are coming forward with information about how important bequests in wills are to funding their work, while some smaller charities are almost entirely funded by gifts from a single legator.

In the following pages we continue our series of features concerning the subject. We report on the latest figures on bequests, a government initiative on the issue and some of the highlights of this year’s Remember A Charity Week.

Income from legacies continues to grow, latest figures show [

THE ANNUAL INCOME from charitable legacies rose by 8% during 2014, according to new legacy giving data from legacy notification specialists Smee & Ford.

The figures show that legacy giving across England and Wales rose from £2.044bn in 2013 to £2.208bn last year, despite a 1% decrease in the number of people who died in the same period.

Almost 35,000 people across England, Wales and Scotland left 112,937 gifts to charity in their wills in 2014, with supporters typically choosing to benefit three charities.

Donors are also giving a higher proportion of their estates to their chosen charities – 16.65% compared to 15.8% in 2013 – and the total value of those estates rose from £12.7bn to £13.3bn: an increase of 4.7%.

Over the longer term, the number of charitable estates is also on the rise, growing from 25,523 in 2007 to 34,967 last year. That was against the backdrop of a falling death rate, declining from 560,038 to 555,478 annually in the same timeframe.

The number of charities benefiting from

donations has also increased, with 2,257 charities receiving legacy donations last year – an increase of 5% from 2013 and 29% since 2007.

One in six people (15.6%) whose wills go to probate include a charity. People in England are most likely to include a charitable gift, particularly the South East. The figures range from 16.2% of wills probated in England to 14.2% in Wales and 11.15% in Scotland.

Rob Cope, director of campaigning group Remember A Charity, said: “Legacy income continues to flourish, with donors leaving a larger proportion of their estates to good causes and more charities benefitting than ever before.

“As the largest single source of voluntary income, the impact and importance of legacy giving cannot be underestimated. During Remember A Charity Week we have been working with Government, business and charities to support the sector to become loud about legacies.”

Sarah Stickland, a manager at Smee & Ford, added: “The latest figures from Smee & Ford demonstrate what a vital source of

income legacies are. Not only has legacy income surpassed £2.2bn for the first time ever, but more and more charities are receiving legacies.

“Analysing the Smee & Ford data also shows what the potential could be for legacies. By converting just 1% of non-charitable wills to charitable, we could generate an additional £70m in legacies each year. Increase that to 5% and we would see another £350m.

“It’s an exciting thought, and this is why initiatives like Remember A Charity Week are so important. The sector needs to work together to demonstrate how important these gifts are and how easy it is to remember a charity in your will.”

Remember A Charity’s campaign involves more than 150 charities and almost 1,000 solicitors and will-writing firms. It is backed by Government and the legal profession, with the support of the Cabinet Office, HM Treasury, Scottish Government, the Department for Culture, Media and Sport, The Law Society and the Law Society of Scotland. The campaign aims to make legacy giving a social norm. q

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Fan’s legacy [AN ORDINARY FOOTBALL fan became a legend when he

left a large portion of his estate to Bishop Auckland FC, the semiprofessional club he supported for more than 70 years.

Colin Rowell left a bequest of more than £300,000 to the club when he died aged 79. Mr Rowell requested that the money from the sale of his bungalow be spent on improving the club’s Heritage Park ground.

Club officials said that the bequest would enable the world’s most successful amateur side to continue to thrive long into the future.

Club chairman Richard Tremewan said: “Although we have received one or two bequests before, we’ve had nothing like this – Colin’s generosity is unprecedented. It’s a stunning amount of money and one that will make a huge difference to the club.”

Almost as soon as Colin could walk his father, who was a train driver, took him to his first match and those early years led to a lifelong love affair with the club.

Darren Brown, a partner in the probate department of Hewitts Solicitors in Bishop Auckland, said: “Colin never married and he had no children so it was, perhaps, the natural thing for him to leave it to the football club that had given him so much pleasure over the years.

“After he died we found a drawer full of newspaper clippings about Bishop Auckland FC and the team’s new ground at Heritage Park.

Clearly, he followed them until the end.” Colin stipulated that the money should be used to improve the ground.

Club director Terry Jackson said: “This magnificent gesture gives us the opportunity to do some of the things around the ground we would like to do – as opposed to what we can afford. It’s up to us to honour Colin’s memory by making sure every penny is spent wisely.”

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will transform football club

Club chairman Richard Tremewan (right) with Darren Brown of Hewitts Solicitors The club are also planning to name part of the ground after their biggest benefactor as well as making his final wish come true.

“Shortly before he died, he said to me that his dream would be to have his ashes scattered on the penalty spot at the new ground,” said his executor Karen Ayre. “He would have been delighted to know that’s what is going to happen.”

Alistair Nattrass, head of Hewitts’ private client department, said the

unusual bequest showed how important it was to have a professionally drawn-up will.

“Leaving money to a good cause is becoming more popular, but it is vital that it is done properly,” he said. “Using a professionally-trained solicitor is the best way to be certain that it goes to the right place. It doesn’t have to cost a lot: our fees start at £90+VAT – that’s not much for peace of mind.” q

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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 the independent charity for victims and witnesses of crime in England and Wales. Last year they offered support to more than 1 million victims of crime. Victim Support provides the Homicide Service supporting people bereaved through murder and manslaughter and runs more than 100 local projects which tackle domestic violence, antisocial behaviour and hate crime, help children and young people and deliver restorative justice.

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

Helping injured service men and women through comradeship and challenge [ FOLLOWING THE WITHDRAWAL of British troops from

Afghanistan, it is worth remembering that there are an estimated 200,000 UK servicemen and women whose lives continue to be affected by injury or illness.

The Not Forgotten Association (NFA) continues to support, sometimes for life, veterans of all conflicts – from those who remain from WWII to those recently injured in Afghanistan.

Since it was founded in 1920, the NFA has remained a modestly sized charity, yet it still manages to provide support to some 10,000 of these men and women each year through its unique programme of recreation, leisure and entertainment. Anyone who has served in the armed services, regular or reserve and regardless of age or rank, may be eligible for their help.

When asked what they miss most about service life, the majority of veterans will answer that there are two things: the comradeship of their ‘mates’ and the many challenges that service life can bring. The NFA aims to provide a replacement for what is missing, hence its motto ‘From Comradeship To Challenge’.

NFA chief executive, Colonel Piers Storie-Pugh, says: “The involvement of our armed forces in recent conflicts has reinforced the dangers of operational service and the continued need for our work.

I am utterly convinced of the benefits that our activities bring to such deserving people.” q • For more information visit www.nfassociation.org.

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Government joins ‘living legends’ to urge will-writers to Remember A Charity [ THE ANNUAL LEGACY giving

awareness drive, Remember A Charity in Your Will Week, this year took place on 7-13 September. It was the sixth year of Remember A Charity Week, which reaches out to millions of people, aiming to make legacy giving a social norm.

Last year the most successful campaign to date was built on the theme Living Legends. It saw a 94-year-old wing walker, an ‘ironwoman’ triathlete aged 72 and an 80-year-old ‘high diver’ uniting to communicate the message that anyone can become a living legend by including a charity they care about in their will.

This year’s campaign built on the Living Legends theme with an Extreme Will-Writing campaign that included will-writers in their 60s and above signing wills at 10,000ft before skydiving down to land. The campaign slogan was: ‘You don’t have to go to extremes to become a Living Legend – you can just leave a gift to charity in your will.’

Rob Cope, director of Remember A Charity, said: “Particularly in light of the negative portrayal of fundraising in the media recently, it has never been more important that

charities continue to strive for the highest standards, cherish their supporters and celebrate success. Without legacy giving, many charitable services may not survive.”

During this year’s Remember A Charity in Your Will Week, the Government issued a plea for those writing wills to consider leaving a gift to charity. Minister for Civil Society Rob Wilson MP, Exchequer Secretary to the Treasury Damian Hinds MP and Paul Wheelhouse MSP, Minister for Community Safety and Legal Affairs at The Scottish Government joined Rob Cope to send out co-signed letters to solicitors across England,

Scotland and Wales. The letters encourage solicitors to remind clients to consider leaving a gift to charity when writing their will.

The letter said: “The UK Government is keen to encourage and facilitate legacy giving. A will can be used to look after everything that your client cares about – from family and friends to charity.”

Ed Vaizey MP, Minister of State for Culture and the Digital Economy, wrote to cultural organisations asking them to get involved.

The government is also asking its workforce to consider remembering a charity in their wills, contacting over 400,000 civil servants. q

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Briton’s ‘young-age pensioners’

– the older they get, the younger they feel [

BRITS IN THEIR sixties and over are feeling younger than their years and are living active, philanthropic lives according to research

by Remember A Charity.

Almost half (47%) of people aged over 60 say that they feel at least 10 years younger and a third say that they are more likely to seek out new experiences than they were 20 years ago, paving the way for a new group of people who could be termed ‘young-age pensioners’ or YAPs. The over 60s are putting their time to good use with more than 22% volunteering. They are also keeping themselves active in body and mind, with 42% exercising at least three times a week and 41% using social media regularly.

Many are using their time to learn new skills (21%) and over one in 10 have taken part in extreme sports over the past decade, including skydiving, bungee jumping and scuba diving. In many cases they are using those activities for fundraising.

Yet despite their new found love for extreme experiences and active charitable giving, 30% are yet to write a will. This is because they don’t feel taking risks and doing extreme activities should prompt them to write one.

However, 16% of over 60s said that they had included a charitable donation in their will and of those that have not done so, over a third would consider leaving a legacy.

Rob Cope, director of Remember A Charity, said: “We are delighted that this research shows how so many Brits in their sixties are living

life to the full. As a group we want to highlight that, alongside the fact that it is important to write a will in order to leave a legacy for all the things they care about – from loved ones to their favourite charities.

“People in their sixties are really doing amazing things, not least of all volunteering their time and taking part in challenge events for good causes. It is fantastic to see that one in six have already included a charity in their will and twice as many would consider doing so. This tells us there is far greater potential still to be met when it comes to growing legacies.

“People know they can give in this way and many are willing, but there is a need to normalise this form of giving and ensure that it becomes a regular part of the discussion when planning a person’s inheritance or will.” q

Enriching the lives of people with learning disabilities [

CAMPHILL FOUNDATION PROVIDES much-needed financial support to projects which enhance the quality of life of adults, children and young people with learning disabilities. Camphill communities throughout the UK and Ireland offer safe and supportive environments, in a variety of semi-rural and urban settings, where individuals can feel at home and develop their personal abilities and interests.

There is also a strong sense of belonging to a diverse but cohesive intentional community and supported living network. Work opportunities abound, giving a real sense of meaning, purpose and achievement, which is essential for a person’s well-being.

Camphill Foundation supports development projects such as the building of new accommodation, establishing new workshops and facilities, developing agricultural and horticultural activities, providing new equipment and various educational, training, cultural and social initiatives. Support is often in the form of grants to help projects get started and loans at a low rate of interest, usually over several years.

Supporting Camphill Foundation also means fostering a new understanding and recognition of people with disabilities and enabling them to develop and make use of their astonishing talents and skills as fully engaged, talented and co-responsible members of the community carrying out important and meaningful work which is both fulfilling for them and of great value to others. q • For more information and to help the foundation achieve their aims visit www.camphillfoundation.net.

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www.yourexpertwitness.co.uk

How to get paid promptly as an expert witness in the UK

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

[

I try to ring on a Monday at about 3 pm – FIRSTLY, BY THINKING ahead. This is by that time the practice manager has some a positive English cultural custom which I try breathing space and likes to chat, or even to follow, whereas ‘not talking about money to book another session. beforehand.....or at all’ is a negative custom If I am booked by a locum agency, I email – one which I ignore with a smile. I like to my invoice the same day – addressed to do my work to the best of my ability and the manager, the consultant who booked professional training as an impartial expert me and also to the finance officer. If I am witness assisting the court in reaching a not paid within a week, I simply ring the decision. But prompt payment helps cash finance officer directly – sometimes for two flow! successive weeks! It is rare that they pay as The contract is also important. Before I soon as they have received payment from accept instructions, I get a signed contract the practice. from the senior partner of the instructing In a surprise from one agency, I received solicitors. This will stipulate whether full a large sum of money, on two occasions, for payment is to be made in advance, fifty per surgeries which I had not done! Although I cent in advance or on receipt of my invoice had mixed feelings and hoped that it was soon after receiving a full report (£600) or a a bonus, I rang the finance officer. She short statement (£300). My report or short apologised as it transpired that another statement and my invoice are not subject locum had written his/her name as Dr B. to approval by any other authority as the Qureshi. Obviously, I was well known to her instructing solicitor checks my credentials as Dr Bashir Qureshi – unbeknown to that beforehand. I do the hard work – for which I locum GP who just put down an initial and expect to be paid! not a first name. Nevertheless, I paid the My invoice explains full details of the time amount back in full and it was with pride that spent to prepare the report or statement. I I wrote about these events in the probity would also have given these details in my Dr Bashir Qureshi inside No. 10 Downing Street, section of my annual appraisal! reply to the initial enquiry by the solicitor in September 2014.

Some expert witnesses and locums who would then have obtained approval send reminder email after reminder email beforehand by the paying authority or the or post their invoices. They often have to wait a long time for payment client. These details are essential for the instructing solicitor in order to and feel anxious, even furious. I must say that this is not always the get paid – whether that be by the Legal Aid Agency or the client. In cases other person’s fault. Calm persistence pays and happy relationships last conducted by the police, I invoice at my hourly rate of £70 per hour and longer. Friends, like flowers, give pleasure by just being there! q produce a time sheet. I submit the invoice by email and then by ‘signed for delivery’ in the post, asking for acknowledgement of receipt.

Next comes the follow up. After two weeks, I ring the secretary or accounts officer of the firm to enquire when will my invoice be paid.

Sometimes, I have to ring again a week later. I do not ring the solicitor himself for payment as reminders to the right person work like magic.

Finally, as soon as I receive payment, whether by bank transfer or cheque, I send a receipt with details of the time spent. These are essential for the solicitor firm’s records and tax purposes.

As a gesture of goodwill I do not charge for any follow up questions.

Quite often I receive payment within four weeks as email reminders and polite phone calls are not welcome. It pays to take the right path to success – seek and ye shall find!

I use the same principals in my work as a locum GP in London. If I am booked by a surgery directly, I leave my invoice, addressed to the senior partner, with the practice manager when I leave or I email it over on the same day. If I am not paid within two weeks, I then politely ring the practice manager who chases the partner for me regarding payment.

Sometimes, I have to ring again the following week. 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.

Professor David Warwick

The Medicolegal Practice of Donald Campbell Consultant Neurosurgeon.

Expert on the entire range of hand and wrist conditions seen in medico-legal practice with over 4,500 reports written over 20 years

www.aaamedicolegalreporting.co.uk

www.handsurgery.co.uk Expert Forensics

Translations and Interpreting for the Legal Profession since 1997.

Specialists in Personal Injury and Clinical Negligence.

Independent forensic consultancy service run by experienced forensic practitioners.

www.abc-translations.co.uk

www.expertforensicsltd.co.uk

Dr Aman Ranu

Expert in Mind

Expert Witness in Clinical Forensic Medicine.

Injury interpretation • Drink/drug driving cases

Providing high quality medico-legal reports within the field of mental health

www.expertphysician.info

www.expertinmind.co.uk

Building Design Workshop

FHDI - Kathryn Thorndycraft

• Architects • Expert Witnesses • Personal Injury/Disability Housing Needs • Project Managers

Examining documents & handwriting – to determine authenticity • to expose forgery • to reveal aspects of origin

www.expertsbdw.com

www.fhdi.co.uk

Mr Chris Makin

Forensic Accounting Solutions

• Chartered Accountant • Accredited Civil Mediator • Accredited Expert Determiner

Forensic accountants specialising in investigating, advising and reporting on quantum issues

www.chrismakin.co.uk

www.fas-partnership.co.uk

Coates-Greetham Forensic Meteorologist

Forensic Mobile Services

Interpreting the weather for the Legal and Insurance Sectors. Civil and criminal cases welcome

Specialists in Digital Forensics & Cell Site Analysis

www.coates-greetham.co.uk

www.fmsgroup.co.uk

D & HB Associates Ltd

Dr Joshua Adedokun

Experts in Road Traffic Offences • Accident investigation • Stolen vehicles • Tachograph analysis

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

www.dandhb.com

www.expertpainreports.co.uk

David Bunker Arbitrator & Mediator

Mr Kim Hakin FRCS FRCOphth

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

Consultant Ophthalmic Surgeon and Expert Witness on ophthalmological matters

www.david-bunker.com

www.kimhakin.com

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www.yourexpertwitness.co.uk

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

Maurice W McLain

Professor Roger James

Consultant in Accident & Orthopaedic Surgery.

Specialist in whiplash and sports injuries.

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

mauricemclain@btconnect.com

www.independenthealthconsultant.co.uk

MD5 Ltd

Mr Simon Bramhall

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

Consultant General/Upper GI and HPB Surgeon. Significant medico legal work undertaken in his area of expertise.

www.md5.uk.com

www.simonbramhallhpbsurgeon.co.uk

Medical Illustration UK Ltd

Stockport Psychology Services

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

Specialising in Public & Private Family Law, Personal Injury, Clinical Negligence & Criminal cases

www.migroup.co.uk

www.sps.uk.net

Mr. Michael Hodge

Dr Thomas C M Carnwath

Maxillofacial and Oral Surgeon.

• Personal Injury • Criminal Cases • Clinical Negligence

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

www.consultantoralandmaxillofacialsurgeon.co.uk

www.psycholegal.org

Mr Michael Thompson

Mr William Stuart Hislop

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

Consultant Oral and Maxillofacial / Head and Neck Surgeon.

Specialist in ablative and reconstructive surgery.

www.expertcolorectalsurgeon.co.uk

www.wshislop.co.uk

www.yourexpertwitness.co.uk

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MEDICAL NOTES [

THERE SEEMS TO be no let-up in the stream of NHS trusts hauled before the Chief Inspector of Hospitals to be condemned like heretics before the Inquisition. The latest to be recommended for ‘special measures’ was East Sussex Healthcare NHS Trust.

The verdict follows a woeful series of similar stories. In September the national press latched onto a similar fate befalling the Cambridge University Hospitals Trust, administrator of the internationally-lauded Addenbrooke’s Hospital.

What is particularly saddening about these stories is that nobody in their right mind thinks NHS staff set about wanting to be ‘Inadequate’, or turn up at work thinking they will do anything other than their level best to provide the best care for their patients. There is often what the Care Quality Commission describes as a ‘disconnect’ between staff and management, with management seeming to have little idea of what actually providing that care involves.

• One of the areas where there is the prospect of negligence cases being brought is that of lower-limb amputation due to inadequate treatment of vascular breakdown. It is an area fraught with uncertainty – when is the amputation a failure of treatment and when is it a necessary intrusion to save life?

The sad story of a pensioner with mental health difficulties whose refusal to accept an amputation was upheld by a judge, despite it being deemed necessary to save his life, brings the dilemma into a sad focus.

• No-one can have escaped the fact that the end of September marked the return to British soil of the Rugby World Cup. Rugby is a game in which the prospect of being concussed is finally being recognised as a serious risk. The same is true of all contact sports. There is at last a recognition that allowing a player to continue following a head injury without being treated is a serious dereliction by authorities.

A little-known accompaniment to concussion are symptoms following the injury, known as postconcussion syndrome. The occurrence of the condition, which has a series of physical and psychological symptoms which may be lifelong, is unconnected to the seriousness of the original injury. It is a lottery – not aided for the sufferer by the fact that in some cases the fact of their suffering is denied by defendants.

• Which brings us back to clinical negligence cases. The Association of Personal Injury Lawyers (APIL) is still finding itself having to go into battle to persuade the powers-that-be that clinical negligence victims should be compensated and not demonised.

The exchange followed the publication of the Annual Report of the NHS Litigation Authority, which included an attack on fees and a commitment to drive down costs. At the same time the government announced a move to cap costs in negligence cases.

As APIL points out, if there was less negligence when treating patients, there would be no need for negligence cases. Simples! q

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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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www.yourexpertwitness.co.uk

Insurance industry and the lawyers: keep your friends close…

[PERSONAL INJURY LAWYERS have

turned their guns on the insurance industry in the latest round of the battle over the existence – or not – of a ‘compensation culture’ in the UK. This time the subject was the much-vaunted high levels of fraud the industry claims to be experiencing.

APIL’s president, Jonathan Wheeler (pictured), said in an open letter published in September and directed at the insurance industry: “In recent weeks I have been a part of the personal injury sub-group which made recommendations to the Insurance Fraud Task Force for its final report, due to be released by the end of the year.

“Of course we didn’t all agree on everything, but it was good to get round a table and thrash out some important issues. While we were doing that, I was reminded that it’s only been three months since insurers started sharing data with claimant lawyers to help prevent fraud. A few years ago no-one would have placed bets on this being achieved.”

Mr Wheeler went on to list ways in which claimant lawyers and the industry shared common goals.

“The ABI list included cracking down on the behaviour of claims management companies.

We’re all for that – we believe injured people should go direct to properly qualified and accredited solicitors. Some insurers support us in that already. If the rest of the industry

were to put its weight behind our scheme, claims management companies could become redundant altogether.

“The ABI list also includes modernising the system to ‘get compensation to claimants’.

Who could argue with that? Of course, modernisation need not mean the complete dismantling of a system to benefit one party at the expense of all others. It can – and should – mean working in genuine collaboration to help injured people receive the care and compensation they need.”

There was a sting in the tail – or rather two – as could be expected. In this case they concerned industrial deafness and whiplash.

“We all want industrial deafness cases to be settled more quickly and I hope the opportunity provided by the Civil Justice Council, at the behest of Lord Faulks, to talk about these claims will be an opportunity for us to really get to the heart of the issues.

“And let us please have less obfuscation about whiplash claims. We all know claims have fallen in the past four years.

Compensation Recovery Unit statistics do not lie. Just accept that and let’s all move on.” q

Another NHS trust recommended for special measures [

ENGLAND’S CHIEF INSPECTOR of Hospitals has recommended that East Sussex Healthcare NHS Trust should be placed into special measures following a second report on the quality of care provided by the trust. The Care Quality Commission (CQC) had previously inspected the trust in September 2014, when Conquest Hospital at Hastings and Eastbourne District General Hospital were both rated ‘Inadequate’.

A team of CQC inspectors followed that up with a further unannounced inspection in March 2015 to check on progress which had been made to address the main areas of concern – focusing on maternity services, outpatient and diagnostic imaging services, surgery and accident and emergency care. In a report published on 22 September the trust was again rated as ‘Inadequate’ overall.

Chief Inspector of Hospitals, Prof Sir Mike Richards, said: “It is clear from our most recent inspection that East Sussex Healthcare NHS Trust has been struggling to deal with deep-rooted problems which have been having an impact on its core services. I am disappointed that the trust has made too little progress in dealing with the significant issues in the underlying culture which have been all too apparent for some time.

“While I recognise that the trust has been working over the last few months to make further improvements, I am chiefly concerned at the rate of progress since our inspection last year. The continuing disconnect between the trust board and staff is worrying, and I am sure lies behind the continuing poor performance.

“We will continue to monitor the trust’s performance closely. I am hopeful that when we return in the future to check again we will find evidence of significant changes for the benefit of all who those depend on its services.” q www.yourexpertwitness.co.uk

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APIL takes up the cudgels on clinical negligence fees [

IN JULY THE president of the Association of Personal Injury Lawyers (APIL), Jonathan Wheeler, issued a statement in response to the publication of the NHS Litigation Authority’s Annual Report.

Announcing the publication of the report, the NHS LA said: “Approximately one third of the total sum paid out last year went to the legal profession, most of which was paid to claimants’ lawyers. The NHS LA has stated its support for a move to a position where legal costs are more proportionate to damages whilst ensuring that those with valid claims have a place to go for skilled and experienced support.”

In his response, Jonathan Wheeler said: “An injured person is on the back foot and takes on a big fight when he pursues the NHS for redress. The injured patient and his representatives have to prove that they have a case when the NHS holds all the cards and all the information about the circumstances in which he suffered harm. With the burden of proof on the injured claimant, claims will inevitably cost more to pursue than for the NHS Litigation Authority to defend.

“Savings could be made if the NHS LA were to admit liability where is it obviously due, rather than defend until the door of the court and then settle at the last minute, having run up huge costs on both sides along the way. The NHS would help the NHS LA in its commitment to defend public funds if it was to steer its focus onto preventing harm in the first place and righting wrongs when they happen.”

In the same month, in a letter to local press, APIL’s chief executive Deborah Evans attacked moves to fix fees for clinical negligence claims.

She wrote: “Proposals to fix legal fees for clinical negligence personal injury claims focus on saving money rather than

getting the costs right. Lawyers’ fees must enable them to investigate claims properly and get the right answer for the injured patient. The fees need to cover the cost of medical experts and court fees, as well as a sufficiently experienced legal team, fit to take on the NHS which holds all the cards when a patient is injured or dies needlessly.

“Worthwhile but complicated cases can result in relatively low damages, but still require money to investigate. For example, the level of compensation for a death is shockingly low, and the cost for a lawyer to pursue the claim could outweigh it. If fees were reduced and fixed, these cases might never be able to be pursued or investigated.

“How can that possibly be right when a patient or a patient’s family suffers such an injustice? Just because a case costs more to run than the resulting compensation, does not mean that it should never be brought.”

She quoted Health Secretary Jeremy Hunt, who warned earlier this year that up to 12,500 patients die needlessly every year because of NHS blunders.

“Compensation does not ‘take money away’ from the health service,” said Ms Evans. “Negligence does. The most effective way to save money, and the only fair way for patients, is to reduce claims by cutting the negligence at source.” q

DoLS in need of urgent review, says BMA [THE BRITISH MEDICAL ASSOCIATION (BMA) has issued guidelines to health

professionals following its call to the government for the Deprivation of Liberty Safeguards (DoLS) to be urgently reviewed. The guidance has been provided to help doctors assess whether a vulnerable patient’s care or treatment is likely to amount to a deprivation of their liberty.

The BMA is also responding to the Law Commission’s consultation into alternatives to DoLS to ensure they are good for patients and for doctors. If they are, it says it will urge the government to take the recommendations forward.

John Chisholm, BMA Medical Ethics Committee chair, said: “DoLS are very complex and bureaucratic for health professionals, often leading to considerable confusion and disagreement over what constitutes a deprivation of liberty. By providing our own guidance, we hope we will help doctors when they are faced with a decision to determine whether a patient’s care or treatment is likely to deprive them of their freedom.

“We believe the safeguards should have a more streamlined approach, stemming from and protecting the best interests of the patient, while enabling doctors to focus on caring for patients rather than jumping through legal hoops.” q

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The ‘eureka! moment’ that changed crime detection forever CHRIS STOKES, Editor at Your Expert Witness, celebrates the father of DNA testing

[

WHAT IS WIDELY known in this country as genetic fingerprinting was discovered at the University of Leicester by a researcher named Dr Alec Jeffreys – now Professor Sir Alec Jeffreys – in 1984. It was what he describes as a ‘eureka! moment’: 9.05am on Monday 10 September.

The technique that was to pave the way for many successful prosecutions – and defences – resulted from years of work dating back to the mid-1970s in Amsterdam before the 27-year-old postdoctoral researcher was enticed to Leicester.

He described the moment in an interview for a special 25thanniversary website created by the university’s Department of Genetics in 2009.

“We were getting extraordinarily variable patterns of DNA, including

from our technician and her mother and father, as well as from non-human samples,” he said. “My first reaction to the results was 'this is too complicated', and then the penny dropped and I realised we Professor Sir Alec Jeffreys had genetic fingerprinting.”

Although the technique’s most celebrated applications are in the criminal sphere – in particular, trapping killers – the first case it was used in was an immigration appeal.

In 1985 a teenage boy from Ghana was under threat of deportation because the Home Office argued his mother could in fact be his aunt.

The test – involving the boy, his mother, her three other undisputed children and an unrelated individual – demonstrated that the boy was, indeed, his mother’s son and he was allowed to stay.

The first case of DNA in a criminal investigation was in Leicestershire itself in 1986, in a case involving the rape and murder of two girls three years apart. Although a suspect had admitted to one of the crimes, he denied the other. The use of DNA fingerprinting – or profiling, as it is more commonly known – actually proved he could not have committed either murder.

Following the world’s first mass DNA testing campaign the real killer, Colin Pitchfork, was caught and convicted despite having initially evaded capture by persuading someone else to take the test for him.

Had he not been overheard boasting about the ruse, the technique may have been dismissed as a failure. The case was immortalised 30 years later in a two-part TV series, Code of a Killer.

The technique used in the early applications was known as multilocus probing (MLP) and gave rise to the distinctive 'bar-code' pattern that we still think of today. Advances over three decades, however, have resulted in much higher sensitivity, with much smaller samples being needed to produce a result.

DNA profiling is now, of course, in widespread use in a range of applications – from the celebrated and dramatic criminal investigations to establishing relationships in civil and family cases. The technique has even been used in archaeology and was successful in identifying descendants of US President Thomas Jefferson and one of his female slaves. Its first application – in immigration cases – is still very much a day-to-day use of the technique as evidence.

Last year, 30 years on from his discovery, Sir Alec Jeffreys was awarded the Royal Society's Copley Medal: the oldest science prize in the world. q Picture by Jane Gitschier, reproduced under a Creative Commons Licence

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www.yourexpertwitness.co.uk

Some legal aspects of arthroplasty – a common operation but with possible complications nevertheless

by MUNTHIR J FARHAN MB ChB FRCS, consultant orthopaedic surgeon

[ AT THE CURRENT stage in the history of medical advances,

artificial hip joint replacement, or arthroplasty, is the most commonly performed operation for cases of arthritis in the hip, which causes severe pain and disability – it is also considered to be the most successful.

However, the operation is very intrusive in nature and has a list of complications. While some of those complications are rare, they are difficult to manage and can result in serious disability, with medico-legal implications.

The procedure requires the surgeon to remove the damaged arthritic joint, which is made by God, and replace it with a manmade, artificial hip – made from non-living material and with no ability to regenerate or repair. These inert materials can cause debris due to wear and tear, as seen in any machine. That debris can initiate local destruction and loosening of the prosthesis.

An artificial hip joint is expected to last around 15 years before it fails and revision is required. Failure is usually due to infection or

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aseptic loosening. A successful arthroplasty should last 10 years with a less than 10% failure rate.

Factors affecting the outcome of hip replacement can be categorised as: • Patient related • Prosthesis related • Related to the performing surgeon The worst combination of factors would be a male patient under 40 years of age, with advance pathologies such as developmental dysplasia of the hip (DDH). He would have been operated on by a less experienced surgeon using a cement cup and stem without long-term survival records.

There are, of course, other minor factors. Prosthesis-related factors are fixation, design and the material and size of the bearing. Fixation could be cemented, cementless or a combination (hybrid). The design of the prosthesis could be monoblock or modular and also related to its shape.

The bearing could be made from a combination of polyethylene, metal or ceramic material, with different sizes of head.

One of the early post-operative complications is dislocation – usually due to technical or operative error – caused by component mal-position or soft tissue imbalance. That type of dislocation usually requires revision. The surgical performance is sub-optimal and the Bolam test is applied.

Occasionally early dislocation is due to overloading of the prosthesis when the patient exceeds the normally allowed range of movement – sometimes referred to as physiological dislocation.

Closed reduction and protection for a while is all that is required for this complication, which is acceptable.

Another operative complication is fracture which is more often seen in cementless hip procedures as opposed to cemented.

This operative accident should be recognised and assessed.

An unstable fracture should be stabilised, whereas a stable

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fracture should be protected. A fracture diagnosed in the post operative period should be dealt with in a similar way and the patient should be informed about any complications.

Although anti-thrombotic measures have been the subject of fierce debate, it is advisable that NICE guidelines are followed.

If there is any doubt, further assistance from haematologists should be obtained.

Most orthopaedic hip surgeons are now personally involved in obtaining consent from patients. The risk of serious complication must be discussed in detail and should be well documented for future reference.

For example, injury to the nerve may not recover and post-operative infection could be difficult to control. Surgeons should ensure that the patient fully understands the nature of these complications.

According to the National Hip Arthroplasty Register, the rate of complication is very low indeed. The British hips surgeons’ performance standard is very impressive and, compared with other countries, their outcome is second to none. q

Personal injury claims

by DR. S. VENKAT MBBS MSc Ortho (London), FRCS (Glasgow)

[

VERY FEW PERSONAL injury claims arise as a result of clinical negligence. The most common causes of these claims are road traffic accidents, accidents at work, trip and fall accidents, assault claims, accidents at home or on public transport, product defect accidents (product liability) and holiday accidents.

The majority of these cases are orthopaedic in nature, due to injuries to bones, muscles and tissues.

There are personal injury situations where one party is clearly at fault.

For example, when a driver runs a red light and broadsides another vehicle causing serious injury to the passengers.

However, a surgeon who selects an inappropriate size of implant during a joint replacement surgery is negligent. As a result of such negligence, a claimant could suffer serious injuries and symptoms.

Almost any time one party’s carelessness causes another to be injured, a personal injury claim can be filed. The role of a solicitor is to always look out for the best interest of the claimant and that may mean negotiating the best settlement offer possible or taking the case to trial.

The solicitor should inform the claimant that he or she is to be assessed by an expert for symptoms arising as a result of the material accident.

Some claimants are under the impression that they are being referred for treatment, whereas the true purpose is to assess the claimant to provide an unbiased report for assistance and guidance to the court.

The role of a medical expert is always to be accurate, complete and to provide opinions within one’s field of expertise. Fields that lie beyond the expert’s expertise should be identified and referred to other experts in those specialities. q

Informed consent in hip and knee surgery

By MR WINSTON KIM, consultant orthopaedic surgeon, specialist in hip and knee surgery

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INFORMED CONSENT IS a process that includes providing information to patients about the possible risks and benefits of treatment including alternative surgical or non-operative treatment.

Patients should be able to use such information to make an informed decision about whether or not to proceed with surgery.

As a practicing hip and knee surgeon, patient selection and managing patient expectations is key to a successful clinical practice.

By the same token, when asked by solicitors to provide screening reports for possible breach of duty and causation, shortcomings in obtaining informed consent is the basis of many clinical negligence claims.

Ensuring that the proposed surgical procedure is indicated, along with clear documentation of the intended benefits and risks of surgery, are the starting point of obtaining informed consent. Breach of duty in failing to obtain informed consent is often identified in dissatisfied patients with ongoing symptoms after routine and complex hip and knee surgery.

I am available to provide screening reports for possible breach of duty and causation in patients who have had primary hip and knee replacements, hip and knee arthroscopies, ACL surgery and revision hip and knee surgery. q • For further information visit www.manchesterhipandknee.com. www.yourexpertwitness.co.uk

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Pain after personal injury?

By DR ANDREW LOGAN BA Hons (Cantab) MBChB FRCA FFPMRCA, consultant in pain management

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WE HAVE ALL experienced pain – unless we are one of those very rare, unfortunate few who are genetically insensitive to it. It’s a protective mechanism to stop us from harming ourselves and to alert us to seek attention. This is certainly the case for short term pain also known as ‘acute’ pain. The important thing is to find the cause of such pain and when this is treated the pain should normally go away.

While we are investigating the cause there are effective remedies against acute pain. Most of the time in everyday life we avoid causative factors and seek remedies without recourse to the medical profession.

It is part and parcel of everyone’s life. We tend to seek medical attention when the pain experienced is more severe, unremitting, unexpected or a consequence of personal injury.

The main stay of therapy for such ‘acute’ pain is to find and treat the cause whilst maximising comfort with a number of agents that help the pain in different ways. There is usually a beginning and an end to this pain. It can be treated and when the cause is found then eventually, with tissue healing, the pain will recede.

Why then, is it possible to suffer from personal injury, recover from the initial injury but still be in pain and disabled by it in years to come? How can this occur despite relatively normal investigations and evidence that the healing process has been completed?

There is an international definition of pain as ‘an unpleasant sensory and emotional experience associated with actual or potential tissue damage, or described in terms of such damage’ – www.iasp-pain.org.

It follows from this that pain is subjective or ‘what the person says it is’ and that there does not actually have to be any damage either. If the pain has been going on for a while and persists beyond normal tissue healing we call this ‘chronic pain’ where the word ‘chronic’ refers to duration of pain usually over three months. The word ‘chronic’ is often misunderstood to mean ‘very severe’ by patients. The reasons why such a pain should carry on beyond tissue healing are complex and include heightened sensitivity of the nervous system and changes that occur in the pathway and processing of pain in the nerves, spinal cord and brain. These changes, which can be permanent, are referred to medically as ‘wind-up’, ‘central hypersensitivity’ and ‘neuro-plasticity’. Intimately associated with this, one usually finds that sufferers of chronic pain can develop anxiety, poor sleep, depression and social problems.

All these factors interact directly with pain to make it worse and perpetuate it further. A number of vicious circles can form that may be difficult to treat. The often lengthy and stressful medico-legal process can also be an additional factor in perpetuation of a ‘chronic pain syndrome’. If this is not enough to be getting on with, pre-existing or co-existing psychological disorders can make matters worse such as anxiety, depression or post traumatic stress disorder along with interpersonal, social and financial difficulties.

So you can see how pain can easily become chronic but why does this only happen in some people and not in others? People vary in their propensity for this to happen – there is no

predictive test for an individual but it is more likely to happen in those with pre-existing psychological disturbance or chronic pain and probably more likely in those with a pre-accident history of chronic pain problems.

There are also a number of medical pain syndromes that may develop following personal injury such as myofascial pain, facet joint pain, complex regional pain syndrome and neuropathic pain (pain from damage to a nerve or the nervous system) to name but a few. These need diagnosing and treating as early as possible. Early pain relief will help prevent entrenched chronic pain and ameliorate present and future loss of function as well. Those with permanent pain issues can often achieve psychological and functional improvement with what is known as a multi-disciplinary pain management approach. This seeks to address underlying fundamental psychological difficulties and reset goals and expectations to achieve realistic and achievable functional amelioration.

So, what is a pain management expert and how can such an opinion be helpful in personal injury?

The pain management expert should be a consultant of long standing with a special interest in this area. These UK experts are often anaesthetists who as well as ‘FRCA’ have the post-nominal letters ‘FFPMRCA’ referring to Fellow of the Faculty of Pain Medicine of the Royal College of Anaesthetists. They are highly trained and experienced in the assessment and treatment of pain and painful conditions. Those of us who have an interest in medico-legal work are usually consultants of at least ten years experience who have been on courses and often lectured, presented or written on medico-legal matters.

The subject of pain after injury is complex and the assessment of such patients is difficult. The expert in pain management is in the best position to make an overall opinion and prognosis on such claimants.

The very nature of chronic pain lends itself to a subjective analysis and the whole picture must be taken into account. There is often also a need for expert opinion from other disciplines such as psychology or psychiatry or orthopaedics. Although to some extent the pain expert has to be a ‘jack of all trades’ the tying together of all these factors into one package is the bread and butter of a pain management expert.

As such, the pain management expert is probably the ideal expert to comment on condition, prognosis and treatment options in any claimant with persistent pain following an injury. This expert is also in a good position to comment on causation of chronic pain.

The ‘elephant in the room’ alluded to earlier is the fact that pain is subjective and can not be measured directly, though we can observe the consequences of it.

A careful analysis of the records is required, as well as previous reports of other experts, combined with a careful history and examination of the claimant. The pain expert’s opinion will, of course, also be subjective but based on the best available evidence and subject to the usual test of ‘on the balance of probability’.

In summary, the pain expert can help with causation, condition, prognosis and also future treatment needs and costs. A pain expert may also comment on and deliver such treatments, though ideally, to avoid a conflict of interests, the expert witness to the court should recommend that another expert provide that treatment. q www.yourexpertwitness.co.uk

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Orthopaedic expert looks further than most into WADs

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A FULL-TIME secretary and a tape recorder are the total assets of RSW Medico Legal Ltd, a West Midlands-based expert witness consultancy – plus, of course, orthopaedic surgeon Mr Richard ScottWatson.

Mr Scott-Watson’s list of qualifications is truly comprehensive. He is a Fellow of the Royal College of Surgeons of Edinburgh in addition to holding Batchelor of Science, Medicine and Surgery degrees. He holds the Diploma in Disability Assessment Medicine and the Certificate in Aviation Medicine. He also holds a law degree and is a Cardiff University-accredited Expert Witness.

Based in Stourbridge – referred to lightheartedly by his secretary as ‘Head Office’ – he also runs clinics in Birmingham, Coventry, Bristol, Swindon and Oxford. His work involves producing medico-legal reports in orthopaedic trauma cases for solicitors and insurance companies: a practice he has been in for 25 years, having written over 19,000 reports.

Mr Scott-Watson sees his specialism as looking at the whole picture in every case. His main aim is to help maximise the recovery of the claimant, which often leads to further investigation – usually MRI scans – and treatment. Most of the claimants he sees have been under-investigated and undertreated, he says, and most have also never been fully assessed.

the Mayo Clinic (a top neurological institute in the USA), type in thoracic outlet syndrome and see what the first cause is that they mention – it’s road traffic accidents.

“How many solicitors have ever seen that assessed or written in a report? I would reckon almost none. I have been assessing and writing it into reports, as well as successfully treating the sufferers, for 25 years and in that time I have seen it put into only three reports written by others – none of them GPs or orthopaedic experts.”

He warns that if a claimant’s experts are not assessing and treating the condition, their credibility as experts regarding the condition is questionable.

“It occurs in over 80% of the WAD cases I see,” he said, “but you have to ask the right questions and do the correct examination, as often the claimant will not volunteer the symptoms and will frequently either not know they have the condition, or – if they do – that it is related. They just adapt.”

The condition, he explains, does not recover if left untreated. It is, however, a condition that forms a starting point in his examination of all the cases he sees; and it is a speciality in itself, quite unrelated to normal, daily NHS orthopaedic work.

He concluded: “These are not the cases that turn up in hospital outpatient clinics.

Indeed, most orthopaedic surgeons will only see them in their medico-legal practice.”

Whiplash-associated disorder

Qualifications

He freely admits to his ‘hobby horse’ as being the neurological consequences of whiplash-associated disorder (WAD), in particular thoracic outlet syndrome – the pain, numbness and discomfort caused by compression of the nerve cells and/or blood vessels in the passage between the collar bone and the top rib.

“Let me take you on a brief journey, if I may,” he told Your Expert Witness. “Look up

Mr Scott-Watson is also concerned about the qualities and qualifications that make for a competent and credible expert witness when it comes to medico-legal issues.

Increasingly, he says, experts need to prove that they have the specific qualifications to fulfil the role. Of all the courses available to achieve that qualification, he cites those such as the Bond Solon Expert Witness Certificate

at Cardiff University – which he himself attended – as the only ones he knows that really test all aspects of the legal side.

“Far too often,” he says, “I still find reports coming in that have obviously been written for a claimant or defendant instructor. They are fairly easy to counter, but experts should be aware that it should not be obvious, as they are the disinterested finder of the correct answer to the question of injury and disability.”

On the issue of determining disability he has this to say: “How many experts have a qualification or experience working in the field allowing them to assess disability?

Almost none, but disability is the core of the case. So how can anyone assess disability in relation to daily living and work capability without the experience and training to be an expert?”

Injury cases

So what value is the initial GP report in injury cases? They record events that are usually relatively recent before they are forgotten. Beyond that, says Mr ScottWatson, they have little value.

Indeed, he avers, some are written almost entirely by the claimant. He cites the case of one GP expert asking the claimant what they wanted him to put.

“The notes will not be examined in almost all cases,” he claims, “and when they are it is rarely adequate, meaning that as an objective assessment of the whole case they have no value at all. They are an incredibly weak link in the chain and encourage fraud.”

On consideration of prognosis, he says: “Every piece of evidence – contemporaneous notes, past history, previous reports – has to be considered to build as full a picture as possible about the extent of the injury and the progress up to the point of assessment.

People recover at different rates; psychological issues related or unrelated to the injury may get in the way and people with even mild degrees of hypermobility will recover slower from ligament injury than those without. How often have solicitors seen that even assessed, let alone commented upon?”

So what of the future?

“Well, if MedCo addresses the extreme weakness of the GP report system and looks at the qualifications of experts and not just their NHS position (one agency stops employing experts immediately they retire, which shows a profound lack of understanding), then we may get to a more equitable and honest system. At present it is a mess.” q www.yourexpertwitness.co.uk

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Hearing aids: NHS cuts lead to call for defendants to pay [

AN ON-GOING CONTROVERSY over the provision of free hearing aids by the NHS has prompted one industrial deafness solicitor to call for the profession to redouble efforts to require defendant insurers to shoulder the costs of the devices.

Ben Mitchell, head of industrial disease at Applebys Solicitors, commented: “It has been standard practice for solicitors to seek the present and future cost of buying hearing aids privately for clients who have had their hearing damaged as a consequence of noise exposure in the workplace.

“Defendant insurers have over the years robustly challenged claimants who seek, as a part of their compensation, the future cost of hearing aids. Their argument has predominantly been ‘why should the insurer pay damages for obtaining hearing aids privately when they can be obtained for free on the NHS?’.”

Mr Mitchell agreed that, in legal terms, it was a persuasive argument to try to reduce the sum the defendant may have to pay out to the claimant for private hearings aids. He pointed out that it is no longer so easy for claimants to go through the NHS for hearing aids before buying them privately.

“The crux of the matter is,” he said, “why should a patient who has noise

induced hearing loss, and has been told by the medical expert they would benefit from hearing aids now, have to settle for an inadequate service through the NHS when their need is pressing and they have the option of obtaining them privately straightaway, even though it will be at a cost?”

The stories first surfaced last year that NHS chiefs in North Staffordshire were planning to cut provision – particularly providing only one device where two are needed. The plan was taken up by other Clinical Commissioning Groups.

Paul Breckell, chief executive of the charity Action on Hearing Loss, said: “Action on Hearing Loss is extremely concerned that four more CCGs are proposing to stop providing free NHS hearing aids for adults with mild hearing loss and to limit the number of people with moderate hearing loss who will receive them – these are the people who need them the most.

“Hearing loss is a significant health issue which, if ignored or unmanaged, can lead to isolation, dementia and mental health problems. Hearing aids are vital in helping people who rely on them to communicate better, stay in work and continue to have an active life, and are the only viable treatment.” q

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NCEPOD publish report on limb amputation

By PHILIP COLERIDGE SMITH DM MA BCh FRCS Consultant Vascular Surgeon and Medical Director, British Vein Institute and Reader in Surgery, UCL Medical School, London

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Delay in diagnosis THE NATIONAL CONFIDENTIAL Enquiry into Patient Outcome The blocking of arteries in disease of the leg vessels progresses and Death (NCEPOD) has recently published a report on limb with the passage of time and may lead to insidious onset of severe amputation, commonly a subject of litigation related to vascular lower limb ischaemia (inadequate blood supply). Amongst elderly surgery.1 NCEPOD state that their purpose is to assist in maintaining patients, leg ulceration is a common problem and lower limb and improving standards of medical and surgical care for the benefit arterial disease may lead to presentation to a general practitioner of the public by reviewing the management of patients, by undertaking or a district nurse as a leg ulcer. More commonly, leg ulceration in confidential surveys and research, by maintaining and improving the elderly patients is attributable to problems with veins which can be quality of patient care and by publishing and generally making available managed by wound dressings the results of such activities. and compression bandaging.

The aim of this survey was to In patients with lower limb evaluate the care received by all arterial disease the application patients who underwent lower of compression bandages limb amputation in hospitals in can be disastrous, leading to England, Wales, Norther Ireland gangrene and amputation of the and the Channel Isles during the limb. Good medical and nursing period 1st October 2012 to 31st practice therefore includes March 2013. A multidisciplinary evaluation of the circulation group of experts evaluated the to the limb by measurement standards of clinical care before, of the blood pressure at the during and after the surgical ankle in all cases where leg or treatment. The analysis included foot ulceration has developed.

1,926 patients undergoing above This is readily achieved in the knee amputation, 1,760 below GP’s surgery or patient’s home knee amputations and 173 using a Doppler ultrasound through knee amputations.

An ulcer at the ankle in a patient with diabetes with associated lower probe. Failure to undertake The main problem leading to limb arterial disease this essential diagnostic step the need for amputation was before treatment is commenced could be considered to comprise lower limb arterial disease. A major risk factor is smoking and in this substandard care. study 81% of patients were current or previous smokers. A further risk Patients in whom severe limb ischaemia persists over several factor for amputation is diabetes which was present in 349 patients weeks or months develop more extensive ulceration of the foot undergoing amputation. Other illnesses affecting the patient group or limb. The extent of damage to the tissues of the leg can be so included cardiovascular disease, renal failure and respiratory disease – great that even when the patient is referred to hospital there is no including diabetes, these affected 78.5% of patients. prospect of recovery and amputation is the only option. It can be The expert panel of assessors criticised the care provided in a argued in such cases that referral to hospital at an earlier stage small proportion of patients. There were delays in some cases, would have led to restoration of blood flow to the limb by repairing or especially those in which patients were admitted under the care of a bypassing blocked arteries and healing of the leg or foot ulcer. There medical specialty other than vascular surgery, and further delays were is robust scientific evidence that this treatment will save the limb in sometimes incurred once the decision to operate had been taken.

80 to 90% of patients reaching hospital before severe damage to It was thought that amputation may have been avoided in 7.7% of the limb develops. It is likely that causation can be proved in many cases had reconstruction of the arteries been considered. Following cases. amputation, there was poor provision for rehabilitation in some cases.

The report authors have made a series of recommendations about Delays in hospital improving the co-ordination of care between medical specialties in In general, once a patient presents to hospital, the diagnosis of order to provide more effective care for patients undergoing limb limb ischaemia is established and appropriate treatment instigated amputation. leading to a satisfactory outcome. However, the NCEPOD report notes that delays can arise in patients admitted under a medical Litigation arising from limb amputations specialty other than vascular surgery and before a referral to the The NHS Litigation Authority notes that in the period 2014 – 2015, vascular team is made. In some instances, problems can arise there were 83 cases of lower limb amputation where settlements were with scheduling surgery leading to severe ischaemic damage being made. These averaged £400,000. This represents a small fraction of caused to the limb before the blood supply can be restored. In the overall number of patients undergoing amputation in this period. general, limbs in which the blood flow has been suddenly blocked off The NCEPOD report notes that about 7% of patients may have by thrombosis of a diseased artery can survive without damage for avoided amputation had they undergone more aggressive surgical only about 6 to 8 hours. After this the structures which are destroyed reconstruction of the arteries. But is this the only circumstance where are muscles and nerves – the main tissues which allow the legs litigation may succeed?

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to function correctly. In one case where my advice was sought, the combination of delays in diagnosis and treatment (the patient was moved to another hospital) accumulated to 24 hours before a surgical attempt at restoration of blood flow to the legs. The patient was eventually treated by bilateral above knee amputations.

Problems with causation

Not all patients can expect to survive an episode of severe limb ischaemia without an amputation. Many patients reach hospital and undergo treatment of limb ischaemia using a combination of surgical methods and interventional radiology treatments such as balloon angioplasty. Despite this, the limb is lost in some cases. It would be difficult to argue that better or alternative treatment would have avoided an amputation in such cases. The extent of the arterial disease may have been so great that restoration of blood flow was beyond the currently available technology.

It is clear from the NCEPOD study that in the majority of cases where amputation is undertaken, the limb is beyond salvage because of the severity of the arterial disease. Published clinical series of the management of limb ischaemia show that about 10 to 20% of patients presenting with severe limb ischaemia undergo amputation despite appropriate treatment. This is the nature of lower limb arterial disease.

As a result, the defendants in cases where amputation has been done for lower limb arterial disease often assert that the limb would have been lost in any case. This is not always true! Where arterial disease and occlusion is limited to an artery feeding the leg from the pelvis or in the thigh, this should in most cases be successfully restored to adequate function and amputation avoided. However, where all the arteries in the leg are blocked on the x-rays, there is little possibility of successfully restoring blood flow to the limb.

So each case has to be examined carefully when questions have arisen about the survival of the limb.

Diabetes

Diabetes is an increasingly common problem and accounts for about 10% of patients with lower limb arterial disease. Diabetics may also suffer from peripheral nerve problems leading to loss of sensation in the feet. The combination of these factors leads to a significant risk of loss of the limb in diabetic patients who develop foot infections or ulceration.

This has led NICE to advise that where a diabetic patient develops evidence of foot infection or an ulcer he should be referred to a multidisciplinary team within 24 hours.2 Severe infection may advance rapidly through diabetic foot leading to the need for a major amputation in these cases. Failure to heed the advice of NICE on this subject might be considered substandard practice.

Conclusions

Limb amputation leads to severe and disabling consequences. The most common cause of limb ischaemia leading to amputation is lower limb arterial disease arising from smoking and diabetes. Expedient treatment is more likely to lead to avoidance of an amputation.

Unnecessary delays in diagnosis and treatment may lead to loss of the limb and probably comprise substandard care. Not all amputations are the consequence of substandard care. The severity of arterial disease in patients with limb ischaemia may be so extensive that surgical reconstruction is infeasible and amputation is the only option.

Even when amputation is avoided, the range of medical problems affecting this patient group is considerable leading to an average life expectancy of only four years after an episode of severe limb ischaemia, limiting the value of many claims. The management of patients with diabetic foot has been made crystal clear by NICE, making it clear to all where good medical practice lies. q REFERENCES 1

Lower limb amputation: working together. NCEPOD, 2014.

2

Diabetic foot problems. NICE Clinical Guideline 119, March 2011.

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Limited Screening Reports How Somek & Associates are saving their clients time and money [

IN RESPONSE TO the ever changing medico-legal world and post Jackson era, expert witnesses need to be ever mindful of the costs incurred during the litigation process and the need to ensure that the cost of instructing experts is reasonable and proportionate.

Somek & Associates has been providing Limited Screening Reports (LSRs) since 2009 and over the past 12 months we have seen a huge increase in instructions. With approximately 70 nurses, across a wide range of specialisms, 10 midwives and continued focused recruitment to meet the demand, we are well positioned to meet this increasing need. In the LSR, we have carefully designed and developed what we consider to be a report ideally suited to provide a professional ‘opinion only’ on whether there is a case to answer or not.

Our definition of an LSR is one that is not CPR compliant. It is written by an expert from the perspective of being an expert advisor rather than an expert witness. The expert is not instructed under Part 35 of the Civil Procedure Rules, so does not owe an overriding duty to the court but is instructed as an advisor to the party. Based on a fixed fee, with limited time and evidence to review, our experts will produce a 2-4 page report within four weeks of instruction, giving opinion on the specific professional issues but without the detail, unless requested. The aim of an expert advisor writing an LSR is to: a) write a brief report, based on an analysis of a limited bundle of documentation that will detail key professional issues and/or address allegations b) identify whether the respective professional practice standards have been met according to relevant legal tests, usually Bolam & Bolitho, enabling the client to identify the strengths and weaknesses of the case. c) identify whether there are areas for other experts to address d) identify whether any further information is required The LSR will then assist in identifying whether there is a case to take forward or defend as it is undertaken early in the legal process, often as a ‘scoping’ exercise, to better focus the use of expert evidence should a case proceed.

By ALISON SOMEK of Somek & Associates

Unlike a full CPR compliant report, an LSR does not include: • detailed chronology • commentary on the standards expected • detailed discussion of the evidence • detailed argument related to the • opinions expressed • a declaration of truth and other Part 35 • requirements.

Should the report then be supportive to the case, or give weight to the defence, the expert is then well placed to provide a full CPR compliant report, although ensuring it is separate from the LSR. Making experts aware of the challenges in being instructed as an expert advisor and not an expert witness, Chris Pamplin of the UK Register of Expert Witnesses, wrote in December 2014: “Any attempt to drag the expert in to CPR-compliant work (e.g. answering questions) on the basis of the scoping report must be resisted. The move from expert advisor to expert witness proper (i.e. one instructed under CPR 35) must be

carefully considered and formally agreed. It is inevitable, in my view, that such a move will involve the writing of a second, CPR compliant report.”

All reports submitted by Somek & Associates are subject to quality control and our Limited Screening Reports are no exception. We offer a number of alternative report types in Quantum cases too, including condensed reports (for lower value, less complex claims) which will be lower in cost than the more lengthy full reports.

We have a team of highly experienced and trained expert witnesses acting as mentors, to supervise all reports prior to submission, ensuring compliance with CPR. Reports submitted are to an excellent standard, clearly articulate the legal tests and comprehensively address the instructions, while maintaining impartiality and objectivity and upholding the duty to the court. Opinions and recommendations will be robustly argued and well structured. q

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Post-concussion syndrome:

The debate

By DR PRIYANKA PRADHAN, Consultant Clinical Neuropsychologist at Re:Cognition Health

[ POST-CONCUSSION SYNDROME

(PCS) refers to those symptoms that linger following a concussion or mild traumatic brain injury (MTBI). Conflicting findings regarding symptom duration, an absence of objective neurologic findings, inconsistencies in presentation, poorly understood etiology and significant methodological problems in the literature make post-concussive syndrome a controversial topic. It was first described in 1822 by Boyer and understanding varies from a pure ‘neurosis’ or ‘malingering’ to an organic disorder.

Although no universally accepted definition exists, most of the literature defines the syndrome as the development of at least three of the following symptoms: headache, dizziness, fatigue, irritability, impaired memory and concentration, insomnia, and lowered tolerance for noise and light. Post-concussion symptoms can begin to occur within days, although in most cases often resolve within one month.

However, in some individuals symptoms can persist from months to years following injury and may even be permanent. There are a number of theories emerging as to why this may be the case.

One theory is the diathesis-stress paradigm which suggests a predisposition or vulnerability to developing PCS. Vulnerabilities can include pre-existing psychiatric disorders such as depression or personality disorder and/or psychological issues such as poor coping skills and illness perception. The other theory relates to the physical impact and the mechanisms of the injury. As scanning technology becomes increasingly sophisticated, subtle but diffuse microscopic damage to nerve cells and fibers can be identified following MTBI. These pathological changes typically occur after high speed declarative vehicle accidents rather than being struck directly on the head.

Educational Meetings 15th OCTOBER 2015 THE PULLMAN HOTEL, ST PANCRAS, LONDON Re:Cognition Health will be hosting The Big Picture in 2015. This one day conference at The Pullman Hotel, St Pancras will debate how advances in neuroimaging, neuropsychology and other new diagnostic biomarkers influence the evaluation of brain injury in clinical medicine, rehabilitation and in court.

Speakers include: consultant neuro radiologist Dr Emer MacSweeney, Professor of Neurology Richard Wise, consultant neuropsychiatrist Dr Mike Dilley, consultant neuro radiologist Dr Paul Butler and consultant neuropsychologist Dr Priyanka Pradhan.

The risk of post-concussion syndrome does not appear to be associated with the severity of the initial injury and does not require the individual to have lost consciousness. This has significant impact in a medico-legal aspect. A common perception is that patients who develop post-concussive syndrome from head injury are those who perceive a source of blame for the injury and desire to pursue litigation. However, a single study evaluating this did not demonstrate a correlation between blame and litigation. In fact, post-concussive syndrome symptoms persisted after settlement.

The argument continues as to the basis of the PCS. Most investigators now believe that a variety of pre-morbid, injury-related and post-morbid neuropathological and psychological factors contribute to the continuation of the symptoms in those sustaining MTBI. What is certain is the detrimental impact of these symptoms on an individual’s ability to function on a day to day basis and the potential long term impact following MTBI. As such, correct diagnosis, thorough assessment, including neuropsychological assessment, and treatment (medical and psychological) on an outpatient basis should be standard. q

• For further information, please contact Mayuri Patel on 0203 355 3536 or email medicolegal@ re-cognitionhealth.com

Educational Meetings www.yourexpertwitness.co.uk

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Early intervention is the aim of the code [IN THE 2nd edition of its Best Practice

Guide on Rehabilitation, the Association of Personal Injury Lawyers (APIL) quotes Lord Blackburn, who in Livingstone v Rawyards Coal Company [1880] said the purpose of damages was to “…put the party who has been injured… in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation.”

That process often now starts very quickly after the injury occurs and involves early intervention to start the process of rehabilitation.

APIL describes rehabilitation thus: “Rehabilitation is designed to help injured people regain the closest possible level of mental and physical ability which the person possessed prior to being injured. It helps an injured person to regain their independence as much as possible.”

In 1999 APIL, the Forum of Insurance Lawyers and other industry bodies developed the Rehabilitation Code, which was subsequently updated in 2007.

According to Nicky Selby-Short of law firm Shoosmiths, writing in 2012: “The Rehabilitation Code requires the solicitor of a claimant to consider whether early

intervention, rehabilitation or medical treatment may improve the claimant's present and/or long-term well-being, and to consult with the claimant, his family and, where appropriate, his treating physician(s) in this regard, and address the need for rehabilitation at the earliest practicable stage and throughout the case.”

APIL has subsequently produced a leaflet based on its Think Rehab! campaign to

raise awareness among lawyers of care and rehabilitation facilities. APIL lawyers are committed to ensuring the injured people they act for make the best and quickest possible recovery after an injury. They are, according to the association, the gateway to finding the care, financial help and benefits which will speed recovery.

Personal injury lawyers can also help to obtain a number of benefits from the negligent party or their insurers, including: • Upfront payments for things like taxis to • hospitals • Domestic care • Equipment and adaptations to make life • easier during recovery – wheelchairs, • ramps at home etc • Early private medical treatment such as • physiotherapy • Arranging a flexible return to work • Retraining, if needed, to give access to • future employment APIL also points out that benefit advisers can offer help and guidance and health insurance can cover the cost of medical treatment. It can also provide a lump sum, in certain circumstances, or pay regular amounts during a period of injury or incapacity. q

Brain injury and the law: new factsheets available [HEADWAY, THE CHARITY that provides support for people who have suffered brain injury, has published three new factsheets on legal issues on its website. The publications – A guide to disability discrimination law, A guide to Disabled Facilities Grants and A guide to insurance policies after brain injury – have been written in association with Stewarts Law LLP and are designed to help people navigate some tricky legal areas.

A guide to disability discrimination law outlines the important aspects of how the legislation works in practice before discussing the different forms that discrimination can take.

A Disabled Facilities Grant provides funding for essential adaptations to give a disabled person better freedom of movement into and around their home. They are available in England, Wales and Northern Ireland and Headway’s A guide to Disabled Facilities Grants provides information on the grants.

Following a serious injury it is important that the injured party or their family checks their insurance policies to establish whether they have nofault cover or critical illness cover which provides payment in the event of illness or injury. A guide to insurance policies after brain injury is a helpful document in those circumstances.

“Sadly,” says the charity, “facing discrimination can be a common occurrence for many brain injury survivors. Our factsheet on the subject can help you know where you stand legally if you feel you have been discriminated against.

“The other titles can help you identify whether you could qualify for a Disabled Facilities Grant and guide you through the possibilities of making an insurance claim after injury.”

The full range of Headway factsheets is available to download from www.headway.org.uk/Factsheets.aspx. q

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Your dental expert witness profiling Professor Paul Tipton [ PROFESSOR PAUL TIPTON has

extensive experience as an expert witness in cases involving dental negligence as well as personal injuries sustained to teeth and supporting structures. Having developed a high level of expertise in the medico-legal field, dealing with such cases from a legal report and treatment perspective, he is able to act in cases relating to: • Prosthodontics • Dental Implants • Cosmetic Dentistry • Aesthetic Dentistry • Temporomandibular Joint (TMJ) • Restorative Dentistry • Tooth Loss • Dental Bridgework • Dental Veneers Professor Tipton gained his Masters Degree after two years study at the Eastman Dental Hospital and London University graduating with an MSc in Conservative Dentistry. The following year he began teaching the new MSc in Restorative Dentistry at Manchester University and now runs his own Restorative, Cosmetic and Implant courses from his Tipton Training Academies in Leeds, Manchester, London and Liverpool.

The experience Professor Tipton has in dentistry means he is THE Dental Expert Witness. He is a founding member of the Academy of Expert Witnesses, a member of the British Academy of Experts, the Expert Witness Institute and the Association of Personal Injury Lawyers as well as being a Fellow of the Royal Society of Medicine.

In 1992 Professor Tipton was awarded the D.G.D.P. from the Royal College of Surgeons and appointed a member of the BDA Independent Practice Committee. In 1999 he was awarded Specialist status in Prosthodontics from the General Dental Council. He regularly lectures at home and abroad and is renowned for his one-year Restorative and Cosmetic Dentistry and Implantology courses, where over 2,500 dentists have graduated during the last 20 years, and for his numerous articles on Implantology and Cosmetic and Restorative dentistry.

He is on the editorial board of Private Dentistry magazine and Restorative and Aesthetic Practice and was a founding member of the British Academy of Aesthetic Dentistry and the British Academy of Cosmetic Dentistry. He is currently President of the British Academy of Restorative Dentistry (BARD).

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Professor Tipton now runs his own Restorative, Cosmetic and Implant courses from his Tipton Training Academies in Leeds, Manchester, London and Liverpool.

Over this time Professor Tipton has represented many patients as their dental expert witness receiving numerous plaudits for his work. Monic Bhakri of Attwood Solicitors was certainly impressed. “We instructed Professor Tipton with regards to a personal injury matter which involved complex issues involving the restructuring of the tooth as a result of an accident, " she said. “With his specialist expertise he provided us with a thorough in-depth analysis of the claimant’s injuries and the solution to resolve the severely damaged tooth. Professor Tipton was concise and efficient and provided us with a thorough dental report. I would most certainly recommend him in the future for such cases involving complex dental injuries.”

Problems with jaw joints can also lead to personal injury claims, including those relating to whiplash which is the most common head and neck injury in vehicle accidents without a direct head impact. Whiplash injury affects the temperomandibular joint (TMJ) in around a third of cases, many of which go unreported to the solicitor as symptoms are not initially

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linked to the accident. If untreated, whiplash injury can lead to osteo-arthritis and other jaw joints problems in later life. Professor Tipton can also act in these cases and advises that all whiplash injury affecting the neck should also be screened for TMJ injuries.

As a leading specialist in the field of dentistry, Professor Tipton is committed to delivering expert witness advice – whether acting for the defendant or the claimant – in a timely, professional and concise manner.

Communication is paramount throughout the entire process in order that he can provide the courts with clear, accurate reports to assist them with their decisions. Although based in Manchester, Professor Tipton also works out of London and is available for all cases across the UK and Ireland. q • To speak to one of Professor Tipton’s team for further information or to enlist his service please call 0161 348 7843 or 0161 348 7844 or you can email drpaultipton@gmail.com.

Professor Tipton’s personal website has a lot more information on his experience – please visit www.drpaultipton.co.uk/expert-witness. www.yourexpertwitness.co.uk

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Oral and maxillofacial surgeons have a dual expertise [

ORAL AND MAXILLOFACIAL surgery occupies a unique place in the medical profession in that dual qualifications in both medicine and dentistry are required to practice the discipline.

The British Association of Oral and Maxillofacial Surgery describes the discipline as “…often seen as the bridge between medicine and dentistry, treating conditions that require expertise from both backgrounds such as head and neck cancers, salivary gland diseases, facial disproportion, facial pain, temporomandibular joint disorders, impacted teeth, cysts and tumours of the jaws as well as numerous problems affecting the oral mucosa such as mouth ulcers and infections.”

Cases giving rise to claims in the area of oral and maxillofacial surgery may include personal injury, criminal cases such as assault and clinical negligence. According to one medical negligence expert company, the most common areas leading to negligence claims are dental procedures – implants, extractions, bridges and crowns – and delayed diagnosis and/or mismanagement of

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mouth, head and neck cancers.

Because of nature of the surgery, cases may arise of psychological side effects of surgery. One such case, in 2014, was reported by solicitors Attwaters Jameson Hill.

In that case: “The Hospital Trust failed to provide an adequate level of psychiatric care and as a result, the patient took his life shortly upon discharge. The settlement included damages under the Human Rights Act 1998.” q

Eminent maxfax named among most influential Londoners [ A prominent maxillofacial surgeon has been named in the Evening Standard’s ‘Progress

1,000’ list of the 1,000 most influential Londoners, for the second year running.

Mr Robert Bentley is Clinical Director for Trauma at Kings College Hospital and a Fellow and council member of the British Association of Oral and Maxillofacial Surgeons. He came to public prominence in 2011 when he pioneered the use of a patient’s own body fat to ‘fill out’ a depression in his skull following reconstructive surgery. He has also appeared numerous times in the TV series 24 Hours in A&E. He led the team which helped secure major trauma centre status for the hospital in 2010 and was heavily involved in setting up the South East London, Kent and Medway Major Trauma Network, which started operating in 2013.

The list of names for ‘Progress 1,000’ was revealed at a ceremony at Canary Wharf’s new Crossrail station on 16 September. q

Air fire passengers to seek redress for psychological trauma [

PASSENGERS WHO WERE left injured after a British Airways plane caught fire on the runway in Las Vegas recently are taking legal action as they seek answers as to what caused the ‘terrifying’ incident, law firm Irwin Mitchell has reported.

The firm says its specialist aviation team have received several requests for help by injured passengers and have been instructed to investigate what happened on board British Airways flight 2276, which caught fire at Las Vegas airport. A number of passengers have reported suffering psychological after-effects of the experience.

Clive Garner, head of aviation law at Irwin Mitchell representing the passengers, said: “The primary concern must be ensuring that all of those who have suffered injuries are given the specialist support and advice they need. Some of the passengers have suffered physical injuries and from previous experience we know that such a terrifying incident can also cause psychological injuries to those involved.

“The psychological impact of a life threatening event like this should not be underestimated. Counselling and other relevant support may also be required to help those affected overcome what they have been through.” q

BPS calls for psychological help for refugees [

THE British Psychological Society (BPS) has welcomed a call from the European Federation of Psychological Associations (EFPA) for all governments and agencies to utilise psychologists and to co-ordinate efforts across the EU to deal with the refugee crisis. EFPA is taking action with all of its members to improve knowledge-sharing and collaboration.

BPS president Prof Jamie Hacker Hughes said: “We welcome the European-wide

statement from EFPA calling for a united approach to give psychological support to asylum seekers and refugees. The BPS has been at the forefront of work on psychological resources following disaster, crisis and trauma through our guidelines which have been adopted by many in the field.

“We call on the government to recognise that psychological services are vital in the support of newly-arrived asylum seekers and refugees who often have a wide range of

physical and psychological difficulties. Warrelated psychological and physical trauma, together with the impact of multiple stressors during their flight, might result in complex health and mental health presentations.

“It is important that psychology, as a key discipline, should be engaged at a planning level as soon as possible so that initial and subsequent responses to these vulnerable people may be both psychologically informed and adequately funded.” q

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Being scarred needn’t mean being scarred for life [

SCARRING CAN BRING with it a range of consequences for those affected, both physical and psychological. Physical disfigurement can be more than purely cosmetic as scars can cause pain and can hamper free movement. They can also be uncomfortable if the thickening of the skin is pronounced.

However, probably of more serious concern in many cases, are the psychological effects of scarring, particularly on the face. Those effects have been described thus by the manufacturers of Scarfade silicone scar gel: “Scars from a variety of sources can have long-term emotional effects in addition to the physical discomfort and marring of the skin. These can be caused by memories of how the injury occurred or from unhappiness at the appearance of the scar. Studies in both South Africa and England show that the presence of scar tissue can have strong psychological effects.”

The action that can be taken to secure compensation for the effects of scarring varies widely depending on the source of the scarring.

According to Kevin Bolton of the Accident Claim Expert helpline: “There are many different types of accident which can cause a scar to the face and disfigurement. The person responsible in law for the accident will be responsible for paying your facial scarring compensation.”

He cites a number of examples, such as road traffic accidents, chemical or other burn injuries in the workplace, slips and trips or even assaults.

Scarring can also be the result of surgical procedures – in some cases of facial scarring even the result of aesthetic procedures meant to improve looks.

In all cases, Mr Bolton explains, the amount of compensation that can be claimed in this country depends on the severity of the injury rather than the type of injury. The expert most usually called upon to make that assessment is a plastic surgeon.

Having determined the extent of the scarring, a decision can be made on whether and how to treat the scar. According to the British Association of Aesthetic Plastic Surgeons: “Time is the best healer as eventually normal scars and hypertrophic scars will mature and become pale. We tend, however, to try and treat the more severe hypertrophic scars and keloids which are the most severe types of scars.” q www.yourexpertwitness.co.uk

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A blend of qualification, experience and analytical desire enhance this expert’s status [ What are the qualities that make for a respected and

accomplished expert witness in the medico-legal field? Most would agree that qualifications and experience are of great importance, but according to consultant plastic surgeon Mr Atul Khanna, it is also important for the expert to be passionate about their work and possess a desire to analyse the issues in detail. These qualities, Mr Khanna believes, have enhanced his status as an expert witness.

Mr Atul Khanna is a consultant plastic surgeon at Sandwell and West Birmingham NHS Trust in West Bromwich and also Walsall Manor Hospital NHS Trust – positions he has held since 1999 – and is a former clinical director for plastic surgery services. He is also a consultant in cosmetic surgery at the Spire Little Aston Hospital in Sutton Coldfield.

Mr Khanna has been involved in medico-legal work for the past 10 years, providing medical reports for solicitors. His

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many years of clinical experience in the management of hand injuries (sequelae of hand injuries and surgery), soft tissue injury (sequelae of post-traumatic scarring) and burns management (sequelae of disability following burns injury, scarring and surgery) have enabled him to prepare around 2,400 reports in those clinical areas. He also prepares reports for cases involving medical negligence in reconstructive and cosmetic surgery.

In all, around 80% of reports are for claimants, while 10% are for defendants and the other 10% are as a single joint expert – although that proportion is rising steadily.

An impressive background

Mr Khanna’s CV is as impressive as his expertise. Following graduation from the prestigious Osmania University in 1983 and specialist training in plastic surgery he was appointed a consultant in 1998. The following year he became a Fellow of the Royal College of Surgeons. That was followed in turn by FRCS (Plast) in 1997, Dip Eur B (EBOPRAS) in 1998 and an MBA from the Open University in 1994. He is on the GMC’s specialist register for plastic surgery.

Other professional bodies he is involved in include the British Association of Plastic, Reconstructive and Aesthetic Surgeons (BAPRAS) and the British Association of Aesthetic Plastic Surgeons (BAAPS), of which he has been a council member.

He has been chairman of the BMA in Birmingham and honorary secretary of the West Midlands Regional Advisory Committee on Plastic Surgery.

In a medico-legal capacity he is a member of the Society of Expert Witnesses and has prepared a chapter for the Encyclopedia of Forensic & Legal Medicine on Medical Malpractice in Cosmetic and Plastic Surgery.

Claims of malpractice in those areas, says Mr Khanna, can arise from a number of causes. There may be unexpected scarring or a general dissatisfaction with the result. In many cases the claims arise from the level of explanation of what is involved or what can be achieved, resulting in poor consent, or from unrealistic expectations on the part of the patient.

Those procedures are also prone to claims from particular kinds of patient. Whilst some have ‘great expectations’, others are excessively demanding, indecisive, immature or secretive.

In a recent interview Mr Khanna cautioned: “It is important for the medical expert to understand the consent process for each individual case and be up to date with all the relevant advances in the surgical techniques for various conditions.

“In cases involving scarring, the process of assessment and reporting is, contrary to the norm with other injury cases, gradual and involves patience. A scar can take up to a year or more to settle, so often a delay of 12-18 months may be needed before a final prognosis can be given and a report prepared.

“However, where the case is complex and may involve several experts, a preliminary report may be the way forward.” q

South American implants manufacturer has CE Mark suspended [

ON 25 SEPTEMBER the Medicines & Healthcare products Regulatory Agency (MHRA) announced it had temporarily suspended the use of South American manufacturer Silimed’s silicone implants in the UK after its CE Mark had been suspended following an inspection by a German notified body.

In a statement the MHRA said: “The German medical device regulatory authority informed MHRA on Friday 18 September 2015 that a German notified body had temporarily suspended the marketing and distribution of all medical devices manufactured by Silimed lndústria de lmplantes Ltda.

“A recent inspection of the manufacturing facility by the notified body identified particles on the surface of some devices.

“MHRA is investigating in collaboration with other European regulators and recommends that none of these devices should be implanted until further advice is issued.”

The devices include silicone implants for plastic surgery such as breast implants, pectoral implants, gluteal implants, calf

implants, implants for hand surgery, tissue expanders, facial implants, nostril retainers and suspension sheets for breast surgery.

The British Association of Aesthetic Plastic Surgeons (BAAPS) said: “Plastic surgeons have been informed not to implant these devices until further assessments have taken place and the CE Mark reinstated – we are not aware of any documented patient safety issues.

“Surgeons from both BAAPS and BAPRAS (British Association of Plastic, Reconstructive and Aesthetic Surgeons) are working closely with the MHRA to further investigate the matter.”

Nigel Mercer, BAPRAS president and consultant plastic surgeon, said: “We are aware of the suspension of the CE marking of all medical devices manufactured

by Silimed that followed an audit of its manufacturing procedures. Patient safety is our foremost concern, and both ourselves and BAAPS are working closely with the MHRA to fully understand the issue.

“There has been no indication we are aware of at this time that these issues pose

a threat to patient safety. However, we are advising our members to contact any patients who may be affected. Any patients who have concerns about their implants should seek advice from their implanting surgeon or clinic. As more information is available, we will be giving further advice to our members, their patients and the MHRA on any clinical issues.”

It was subsequently reported that Silimed has “…stated that they are currently preparing a technical note to show that all devices are compliant with international standards.” The company also said that the issue is only limited to the European Union. q

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