Your Expert Witness Issue No. 35 1YWM

www.yourexpertwitness.co.uk

1

2

www.yourexpertwitness.co.uk

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

Success in ENT surgery leads to medico-legal career [

MR SARWAT SADEK has been preparing medico-legal reports in his specialist area of ear, nose and throat (ENT) surgery for over 15 years since the turn of the millennium. Indeed, it was in July of the year 2000 that he was appointed to the post of consultant otolaryngologist and head and neck surgeon at Musgrove Park Hospital in Taunton, Somerset. He has been practising ENT surgery overall for a total of 35 years, 28 of them as a consultant.

Back in 1974 he had obtained his MBBCh, followed in 1983 by his FRCS in Dublin and subsequently his FRCS (OLR-HNS) in 1999 and his CCST in June 2000. In 2008 he was awarded the FRCS ad eundem by the Royal College of Surgeons of England and nominated visiting overseas Professor of ENT at Islamabad Medical and Dental College in 2009.

Mr Sadak was elected to the Court of Examiners for the Intercollegiate MRCS for the Royal College of Surgeons of England in 2007 and was selected as an assessor for Article 14 for the Postgraduate Medical Educational and Training Board.

His wide ranging experience in all aspects of adult and paediatric ENT and head and neck surgery has led to several publications as well as a patent design for a stent for the treatment of congenital choanal atresia. In fact, Mr Sadak has published several medical research papers in all aspects of ENT and written a handbook on common ENT emergencies and acute conditions. He has also presented his work at national and international meetings.

In the medico-legal arena he has completed a number of courses, including Certificate of Medical Reporting: Civil Procedure Rules Part 35 and Whiplash Associated Disorder in December 2012. This was followed by a medico-legal expert course on clinical negligence in February the following year. q www.yourexpertwitness.co.uk

3

contents IN THIS ISSUE 7

13

Opening Statement

NEWS 8 Asylum system not serving best interests of lone children, says report 8 Grant announced for new forensics centre ahead of regulator’s report BUILDING & PROPERTY 9 The alternative to litigation is cost-effective 9 When church repairs are not a labour of love PERSONAL INJURY CLAIMS – THE ROLE OF THE ENGINEER 11 When personal injury claims need the opinion of an engineer 11 Determining the grounds for an electric shock claim FINANCE 13 Why a forensic accountant can be an insolvency practitioner’s golden ticket 14 Audit office reveals HMRC fraud estimates 15 Forensic accountants: the CSIs of finance

16

CCTV & VIDEO FORENSICS 16 Expert analysis can help uncover the truth 16 Camera commissioner publishes second report WILLS, LEGACIES & CHARITABLE BEQUESTS 17 Milestone reached in campaign to encourage legacy giving 19 Inheritance tax changes prompt legacies campaign 20 Enriching the lives of people with learning disabilities 20 Vital help for victims and witnesses 21 Many potential donors are unsure of inheritance tax breaks CULTURAL, RELIGIOUS & ETHNIC ISSUES 22 Cultural customs in marriage – and litigation issues

22 A to Z WEBSITE GUIDE 24 Our A to Z guide to the websites of some of the country’s leading expert witnesses.

EXPERT CLASSIFIED 52 Expert Witness classified listings 55 Medico-legal classified listings

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.

Views expressed in this magazine are not necessarily those of the publisher. Printed in the UK by The Magazine Printing Company Plc www.magprint.co.uk

4

www.yourexpertwitness.co.uk

1YWM

www.yourexpertwitness.co.uk

MEDICAL ISSUES 27 Medical Notes

37

NEWS 29 Southern report sparks NHS-wide probe into reporting of deaths 30 Doctors respond to Glasgow inquiry recommendation 30 Lawyers and charities unite against fixed cost proposals UROLOGY 31 Why you need an expert witness in urology GYNAECOLOGY & OBSTETRICS 33 Latest report into perinatal maternal deaths welcomed by professions 35 Guideline aims to reduce risks from preterm birth 35 BMJ study highlights weekend care issues WRONG SITE SURGERY 37 Making sure a surgeon is operating on the right patient and in the right place

39

MEDICAL PHOTOGRAPHY 38 Use an expert if you want to get the picture 39 Setting standards in medical illustration for over 40 years CARDIOLOGY 40 Coroner identifies failures at Kent hospital prior to heart attack death 40 Women heart patients missing out on rehabilitation PAIN MEDICINE 41 The effects of pain can run deeper than its physical presence 43 Parliament sees launch of chronic pain resource TOXICOLOGY 44 Accuracy of intoxicated victims’ evidence unaffected but less complete 45 Drug driving changes include prescription drugs 45 Toxicology is not just for crime scenes

41

MENTAL HEALTH ISSUES 47 Mental capacity: background and assessment 48 Mental Health Act detainees suffer care discrepancies OPHTHALMOLOGY 49 Eye surgeons collective fall foul of competition law 49 City solicitor joins sight charity board 49 Cataract surgery ‘rationing’ condemned by ophthalmologists PLASTIC SURGERY 51 New cosmetic surgery certification welcomed by professional bodies 51 Breast implant register nears reality www.yourexpertwitness.co.uk

5

6

www.yourexpertwitness.co.uk

Opening Statement [IN DECEMBER THE National Audit Office (NAO) published the estimate by HMRC of how much was being lost to the exchequer due to tax fraud. The figure was £16 billion – almost half of the ‘tax gap’.

HMRC placed a good deal of the responsibility for that fraud jointly at the doors of organised crime and small business.

HMRC has become more proactive in its tackling of such fraud, although the NAO was less than convinced of its claims regarding the deterrent effect of its increased prosecutions. According to the NAO, HMRC must make better use of the data at its disposal.

• Uncovering and tackling fraud is just one of the roles of the forensic accountant. They are at the forefront of the fight against financial crime – as well as uncovering the financial indicators of other major crimes. And it is an unexpectedly glamourous world, involving high-level sleuthing and the dogged pursuit of the truth.

Occasionally, such as in the case of a major drugs trial or a multimillion-pound divorce case, the forensic accountant steps into the public gaze. Most of the time, however, they operate behind the scenes.

• On a more routine level, forensic accountants are engaged to calculate the amount of compensation a personal injury claimant could be awarded. In such cases there will also be a need to arrive at a conclusion as to the cause of the accident and who is responsible.

That is where the engineering expert comes in. Where there is a failure or mishap regarding a vehicle or any kind of machinery, an engineering expert can often pinpoint where the problem arose and/or who was responsible for the event. They can also determine liability in cases of disputes over product or plant failure.

• Another area where a solicitor becomes involved in financial affairs – and one which can occasionally give rise to controversy – is in the determining of legacies in a will. Often that will include the leaving of an amount to charity, a course of action that is encouraged by government and which an increasing number of solicitors are committing themselves to introducing to their clients. In fact the number signing up to do just that passed the 1,000 mark in September.

In 2012 the rules changed to allow a reduced rate of inheritance tax for liable estates in which 10% or more was gifted to charity. That makes leaving a legacy more efficient, a fact that spurred PR luminary Roland Rudd to found an organisation, Legacy10, to encourage such giving. They also offer an annual award for individuals who make a difference.

On the other side of the coin, research shows that too many people are unaware of the implications of charitable giving for inheritance tax. Let us hope the campaign is successful.

• Many bequests involve offering aid and succour to refugees in war-torn parts of the world. However, unfortunately when the refugee is a lone child our asylum system does not always work in their best interests. That was the finding of a report by the Law Centres Network. They found that life chances for lone child asylum seekers may be affected by the workings of the system.

Often the child’s cultural background is greatly different from the domestic one and it is essential that an expert on cultural differences is on hand. q

Ian Wild

Ian Wild, Director of Business Development Your Expert Witness

www.yourexpertwitness.co.uk

7

Asylum system not serving best interests of lone children, says report [PEOPLE CHARGED WITH making life-changing decisions about

unaccompanied children seeking asylum should be supported to ensure that their best interests are at heart. That call was made in a report from the Law Centres Network, Put Yourself in Our Shoes.

The research formed part of the network’s Principles to Practice project and involved 15 law centres and partners, with voluntary support from City law firm Allen & Overy. It is based on data collected throughout 2014 from a representative sample of 60 cases of unaccompanied children.

In 2014 some 1,945 children applied for asylum in the UK while on their own. The number is expected to rise in light of the government’s recent commitment to take in 20,000 refugees by 2020. The UK government is committed to considering children’s best interests in all decisions made about them.

However, the report indicates that throughout the children’s asylum and care process that is not reflected in practice, with a potential effect on their life chances. Varying levels of understanding of child rights along the process see things done to and for the children seeking asylum without any room for their input.

According to the Law Centres Network, it means that, in effect, the asylum process merely pays lip service to children’s best interests.

Its director Julie Bishop said: “People seeking asylum are fleeing conflict and persecution and none are more vulnerable than children separated from their families. We hope that government will share our concern at the findings and follow our practical recommendations to truly uphold these children’s best interests.”

8

www.yourexpertwitness.co.uk

The report identifies child-centred principles from international practice and highlights areas of good practice in the UK asylum system. It also makes recommendations on improving the asylum process, as well as improving training and skills for those working with children, to ensure that their best interests are paramount.

The report’s authors were Dr Kathryn Cronin, barrister and joint head of Garden Court Chambers, Baljeet Sandhu, solicitor and manager of the Migrant and Refugee Children’s Legal Unit at Islington Law Centre and Prof Ravi Kohli, child welfare expert at the University of Bedfordshire. q

Grant announced for new forensics centre ahead of regulator’s report [

THE UNIVERSITY OF DUNDEE has been granted a £10m award by the Leverhulme Trust to establish a Research Centre for Forensic Science, aimed at shaping the future of the subject and ensuring it remains a vital component of the criminal justice system.

Dundee is one of four UK universities – alongside Cambridge, Liverpool and Sheffield – to win the new Leverhulme Research Centre awards. Each centre will be funded for up to £10 million over 10 years, to support fundamental cross-disciplinary research.

The award to Dundee builds on the university’s international reputation as a centre of excellence in forensic science. The new centre will be led by Professor Sue Black, director of the university’s Centre for Anatomy and Human Identification.

“I am delighted that the Leverhulme Trust has decided to make such a major investment in our work here at Dundee,” said Professor Black. “This really is recognition of our standing as one of the world’s leading centres for research in forensic science.”

“Forensic science is a highly valued component of the criminal justice system but it is widely recognised to be in crisis. We have research gaps in a range of evidence types, from fingerprinting to DNA analysis, and we have to raise the bar in the standards of science underpinning these vital techniques.

“We will work across the forensic science and judicial landscapes and communities to address the existing research gaps, unlock enterprise potential with industry and restore public and judicial confidence in forensic science.”

The announcement came just a month before the first report of the Forensic Science Regulator, Dr Gillian Tully, who over the past year has published guidance and standards on a range of specialist areas – including bloodstain pattern analysis, fingerprint comparison and cognitive bias effects relevant to forensic science examinations.

Dr Tully said: “Progress has been made in the quality of forensic science, but we cannot be complacent – there is more to do.

Quality must be an integral part of all forensic science and, however challenging the financial situation, cannot be seen as an optional extra or expensive add-on. That is why I am working to ensure that appropriate quality standards are in place for all forensic disciplines and that all providers are fully compliant.

“Many forensic service providers across all sectors are already compliant with the standards. However, the report highlights key areas for developing guidance and a path for accreditation, including digital forensics and classification of firearms.” q

The alternative to litigation is cost-effective [

THE CONSTRUCTION INDUSTRY has been at the forefront of resolving disputes by way of so-called alternative dispute resolution. These alternatives to litigation have been encouraged by the courts and the government and, indeed, many construction contracts provide for disputes to be dealt with by mediation, adjudication or arbitration – often, according to a guide to process by the College of Estate Management, a combination of all three.

The largest provider of alternative dispute resolution services to the property and construction industries is that operated by the Royal Institute of Chartered Surveyors. The RICS Dispute Resolution Service appoints around 10,000 dispute resolvers per year.

As the RICS points out: “Alternative dispute resolution is often cheaper and quicker than taking a case to court.”

The RICS also holds an annual conference on dispute resolution in construction. The 2016 event will be held on 28 January at the De Vere Holborn Bars Hotel in London under the title Resolving a dispute: Examining your options.

The conference will provide a timely update on alternatives to litigation in construction disputes. Working through the chronology of a dispute, it will look in turn at conflict avoidance, adjudication and arbitration, while assessing options for all parties at each stage of the

dispute resolution process.

It will discuss best practice approaches to early neutral evaluation and mediation, and assess the emerging trend for the use of dispute boards. Those attending will gain an

insight into the role of surveyors in adjudication procedures and hear an update on the newly formed RICS Arbitration Service in Construction and Engineering. q

When church repairs are not a labour of love [

AN ESOTERIC EXAMPLE of where a dispute may arise over whether a person is even responsible for building repair work is that of Chancel Repair Liability, an ancient law which requires the owners of certain pieces of land to be responsible for the repairs of part of the church.

Chancel Repair Liability arose with the dissolution of the monasteries by Henry VIII. That involved selling off ‘rectories’, or land that had been acquired by the church to support the clergy. With the acquisition of the land by so-called lay rectors came the responsibility to maintain the chancel, or the area of a church around the altar, which had previously been paid for from the rectory.

That responsibility remains and was last famously tested by an 18-year court battle that ended in the House of Lords in 2008 when a couple were landed with a bill for £230,000 including legal costs.

Prior to 2013 there was often no knowledge of the liability on the part of landowners as it was rarely mentioned on deeds.

According to the RICS: “Prior to the registration deadline of 13 October 2013, the onus was on individual parochial church councils to register interests for repairs with the Land Registry. This led to a number of homeowners receiving notifications from the Land Registry about registration of interests on their property.

“New owners of land since October 2013 will not be liable for chancel repairs unless the interest had already been registered with the Land Registry prior to the October deadline.” q

www.yourexpertwitness.co.uk

9

10 10

www.yourexpertwitness.co.uk

When personal injury claims need the opinion of an engineer [

WHEN REPORTING ON personal injury cases, very often the main viewpoint when discussing the quantum is the medical aspect and the extent of the injury. However, where the injury has been caused by a failure of some kind of machinery or by lack of care in using a machine, then an engineering expert is called on to determine the cause of the incident and, often, whether it could and should have been avoided.

Where there is a need for an expert engineer to be consulted, it is essential that a claim be brought speedily. Solicitors Walton Mills stress this aspect.

“In some complicated cases we may wish to obtain expert evidence from an engineer to see who caused the accident. It is therefore important

to consult us well before the end of the three-year time limit,” they say in their guidance notes.

In many cases engineering failures are related to workplace injuries, when the HSE will inevitably be involved. The tragic case of the deaths of two Rossendale men at the Sonnae factory on the Wirral threw this aspect into sharp relief in December when two firms were fined a total of over £400,000 with £200,000 costs over the incident.

A further cause of injury where an expert engineer’s report may be required is in transport. While most road traffic accidents do not require such a report, accidents involving trains, aeroplanes and boats invariably do.

In some cases commercial vehicle accidents

give rise to claims requiring expert report, particularly where roll-over has occurred.

International consultancy Frazer-Nash reports an instance where it was asked to investigate the cause of such an accident on a roundabout.

“We provided expert opinion on whether the accident had occurred as a result of human error, or whether the vehicle itself had not been fit for purpose,” they reported.

Taking into account the weather, the load and the condition of the vehicle, they concluded: “Our findings illustrated that the vehicle was fit for purpose and that the accident had occurred as a result of driver error.” q

Determining the grounds for an electric shock claim

By STUART MORTIMORE BSc (Eng), partner at Burgoynes

[

ELECTRIC SHOCKS APPEAR to be the subject of a steadily increasing number of claims. Frequently a claim is made that the subject, upon touching a particular item, received a shock of such force and duration that they were thrown across a room in fear of their life. Although the subject survived, the reported trauma and physical effects resulting from the alleged shock can lead to a large claim for compensation.

Witness accounts are often vague, at best, and the incident scene has often been changed before an examination can take place. In addition, medical reports are frequently based on what the claimant said rather than on much, or any, clear physical evidence.

Except in extreme cases, electric shocks generally do not leave sufficient medical effects to prove that a shock actually occurred.

Indeed, it is not unknown for a medical practitioner to confuse a ‘cold burn’ with an electrical burn, after being told that a patient was working near electrical equipment but not being told that the equipment was isolated and the injury was associated with refrigeration equipment.

Three criteria need to be satisfied before an electric shock can occur: • There must be a suitable source of electricity • The subject must have come into contact with the source of electricity • There must be a complete circuit through which electricity can flow If any of those criteria is not satisfied, an electric shock cannot occur.

A forensic electrical engineer can assess whether or not any source of electricity is suitable: standard alternating current supplies in the UK generally need to have a voltage of at least 230V, whereas a 110V direct current supply can be highly dangerous. With few exceptions, static electricity would not be sufficient to cause a dangerous shock, although it can lead a person to think that they have received a mains shock.

A forensic electrical engineer can also assess when circuits are energised and whether they are accessible, thereby assisting in determining whether a subject could have come into contact with any suitable source of electricity. In cases where energisation may be transient, the duration of any contact could be determined and that can be compared with known criteria for serious or life-threatening shock conditions.

Finally, a forensic electrical engineer can look at the presence of conductors and insulators and from that determine whether or not a suitable circuit could have existed for any shock current to flow. As a minimum, there would need to be two suitable contact points with the body for electricity to flow through the subject and consideration needs to be given to items such as clothing, flooring and any conductive

materials that might form a circuit. If the scene has not changed, testing may be possible or test results may already exist.

By asking suitable questions and by careful analysis of the information that is – or subsequently becomes – available, application of forensic electrical engineering can assist in determining whether or not an electrical shock could have occurred and in whether any such shock is likely to have caused the injury that is claimed. q

www.yourexpertwitness.co.uk

11 11

12 12

www.yourexpertwitness.co.uk

Why a forensic accountant can be an insolvency practitioner’s golden ticket

By JEFFREY DAVIDSON, managing director of Honeycomb Forensic Accounting

[LIKE MANY CRIMINALS, fraudsters

often leave their fingerprints at the scene of the crime. But in the hands of the right forensic accountant, there are no metaphorical gloves that they can wear to prevent detection – and examination of the financial evidence invariably tracks them down.

Regrettably, when a company faces liquidation, it is not unusual to find directors who anticipate events and attempt to circumvent the inevitable. In doing so, they can become fraudsters.

Routinely, this involves fraudulent conveyance or transfer: trying to pay some creditors in preference to others with the intention of committing fraud. This might involve repaying loans from connected parties or banks where there are personal guarantees, clearing balances with preferred suppliers or sorting out directors’ loan accounts.

Other categories include misusing funds to prepare for a phoenix operation (asset stripping); removing assets and value from the company; deliberately obtaining goods and services that will not be paid for; and outright fraud.

So what is the benefit in looking for fraud, especially when not all fraudulent activity is criminal? Indeed, most fraud is pursued through civil or regulatory proceedings.

Legally defined, fraud in this context is the deliberate action or omission of a party, which deprives an entity of value, where that value can be recovered, and recovery is enhanced through a rigorous investigation.

Standards of proof are paramount.

Any conduct that is devious, or involves cover up, requires investigation. Criminal conduct needs to be examined and reported, irrespective of recovery, while all misconduct should be followed up in the interests of creditors.

The types of fraud in which we specialise involve fraudsters with assets or fraudsters with insurance. These are frauds that can readily be pursued under the Insolvency Act (preferences, transactions at an undervalue, fraudulent/wrongful trading), under the Companies Act (fraud, false accounting, theft, breaches of fiduciary duties) or under common law.

Every case is different. But from our experience, certain key questions need to be addressed. First, the type of fraud must be established and the value ascertained.

Then we look at who is involved, what we think they did, and how we think they did it. Available records are critical, often determining which inquiry and discovery routes we need to explore. Finally, we need to decide what tools are needed.

The process of how we find fraud follows on from two questions – who and why. First, we talk to people, sometimes in formal interviews. System and control weaknesses are evaluated. Hypotheses are formed – who/how/where/on-books or off-books – and systematic procedures are followed – creating a work programme, gathering/ capturing material, data and information, both internal and external. We use forensic tools for data interrogation, digital forensics, and data analysis.

Evidence is crucial. We look for it in conduct and in accounting records such as cash, other assets and costs. Beyond these, we examine external records, including personal financial records and lifestyles.

Finally, there are open source records, both online and offline.

The more information that is compiled, the greater the chance of completing a successful investigation. Speed is of the

essence. This applies equally to computerbased records, real information (bank/credit card statements) and accounting information (financial statements, management accounts, accounting transactions, budgets and forecasts).

Not every fraud is immediately apparent.

To maximise an investigation at the outset of discovery it is necessary to understand correctly what has happened, collect data, remember your duties and use your powers.

Information must be managed effectively. So keep notes, protect the integrity of source material and be systematic in your analysis.

It is essential to calculate losses and identify the scale and scope of what is involved. The challenge for insolvency practitioners is being able to prove fraud.

Here, the best weapon might well be to use the services of a forensic accountant.

Using other external specialists – lawyers, investigators and asset tracers – can also be invaluable in taking the investigation process seriously.

But is it worth it? Cost is often a key driver.

In our experience, 8 out of 10 properly conducted investigations lead to a successful recovery, usually quicker and for a higher value than would otherwise be the case.

There is cost recovery. But even when there is no recovery, doing your professional duty and being seen to do so are imperative. q www.yourexpertwitness.co.uk

13 13

Audit office reveals HMRC fraud estimates [IN DECEMBER, the National Audit Office reported HMRC

estimates that losses to tax fraud amount to £16bn each year. That is nearly half of HMRC’s estimate of its tax gap of £34bn – the difference between the amount of tax HMRC should collect each year and the amount it actually collects.

The report was the first in a series which will evaluate how effectively HMRC tackles different aspects of tax fraud – a longstanding problem not only for HMRC but for tax administrations around the world.

Reducing the amount of tax that is lost due to tax fraud is a high priority for HMRC. To do that it will need to make better use of its data and develop its analysis.

HMRC assesses that two groups – smaller businesses and criminals – are responsible for 17 of the 21 biggest tax fraud risks. Of these, eight relate to organised crime and nine involve medium-sized, small or micro-businesses. It believes those businesses are responsible for tax losses of £17bn – almost half of the total tax gap – but does not consider its internal estimate of how much of this is the result of tax fraud robust enough for publication.

HMRC believes that using its powers to investigate by civil means is usually the best way to recover missing tax at the lowest cost. It pursues criminal prosecution for cases where it believes it needs to send a strong deterrent message or when, given the severity of the fraud, it considers prosecution the only appropriate action.

According to the report, HMRC met its target to increase prosecutions by 1,000 a year by 2014-15, but recognises that it needs to better prioritise the cases it selects for criminal investigation. Although HMRC

14 14

www.yourexpertwitness.co.uk

cannot demonstrate that this was the right number, the target had the effect of prompting the department to change its processes and make its investigations more efficient. This led it to focus on less complex cases, in particular a large number of prosecutions for people who had evaded income tax, VAT and tobacco duty.

In a release, the National Audit Office states: “HMRC has more to do to understand what benefits it has achieved by increasing the number of prosecutions. In 2014-15, HMRC claimed £295m in yield from the deterrent effect of its additional 1,000 prosecutions. However, in 2015 HMRC evaluated the deterrent effect of these prosecutions and found that it could not verify their monetary value.”

The head of the National Audit Office, Amyas Morse said: “HMRC loses £16bn a year due to tax fraud, but reducing these losses is not straightforward. HMRC has met its targets to raise more tax revenue in the short-term. It now needs to consider whether its overall strategy is designed to achieve the best long-term outcomes. We will be evaluating HMRC’s performance in tackling different types of tax fraud in more depth. As we do so, we will be looking for further improvements in the way HMRC uses data and analysis to understand the effect of its actions in both the long and short-term.” q

Forensic accountants: the CSIs of finance [The integration of accounting, auditing and investigative

skills, yields a specific speciality known as ‘forensic accounting’, providing an accounting analysis that is suitable to the court and which forms the basis for discussion, debate and – ultimately – dispute resolution. In that way, forensic accounting encompasses both litigation support and investigative accounting. In this analysis, DEREK WILLIAMSON of Goddards Accountants explains the skills involved in forensic accountancy and some of the areas of litigation involved.

What does a forensic accountant do?

As forensic accountants we deploy accounting, auditing and investigative skills when conducting an investigation. Equally critical is our ability to respond immediately and to communicate financial information clearly and concisely in a courtroom setting. Forensic accountants are trained to look beyond the numbers and deal with the business reality of the situation.

A forensic accountant is often retained to analyse, interpret, summarise and present complex financial and business related issues in a manner which is both understandable and properly supported.

Forensic accountants can be engaged in public practice or employed by insurance companies, banks, police forces, government agencies and many other organisations.

They can be involved in: • Investigation and analysis of financial evidence • Development of computerised applications to assist in the analysis • and presentation of financial evidence • Communication of their findings in the form of reports, exhibits and • collections of documents • Assisting in legal proceedings – including testifying in court as an • expert witness and preparing visual aids to support trial evidence.

In order to perform those services a forensic accountant must be familiar with legal concepts and procedures. In addition, the forensic accountant must be able to identify substance over form when dealing with an issue.

What should a legal professional consider when retaining a forensic accountant?

The issues to be considered include the experience and qualifications of the forensic accountant. They should also be retained as early as possible in order to obtain the maximum benefit. The assistance a forensic accountant can provide early in the process can be significant in reducing the overall cost and maximizing the benefit. If retained early, they can assist with the ‘examination for discovery’, identifying additional areas of damages, assisting with settlement negotiations and providing a preliminary assessment of the quantum of damages.

If the forensic accountant is being engaged as an expert witness, then they should be given access to all of the relevant documentation.

If restrictions are imposed upon the scope of the investigation, there may be an impact upon the acceptance of the findings.

In situations where counsel is involved, the forensic accountant should be retained by counsel, so the privilege that exists between client and counsel will be extended to the work produced by the forensic accountant.

What are the main areas of litigation involving the work of the forensic accountant?

Criminal investigations and fraud: A forensic accountant may be retained by local police forces, or by organisations such as the Law

Society, in relation to criminal investigations. Their report is prepared with the objective of presenting evidence in a professional and concise manner.

Connected to that area are investigations into business or employee fraud. Business investigations can involve funds tracing, asset identification and recovery, forensic intelligence gathering and due diligence reviews.

Employee fraud investigation often involves procedures to determine the existence, nature and extent of fraud and may concern the identification of a perpetrator. These investigations often entail interviews with personnel who had access to the funds and a detailed review of the documentary evidence.

Employee dishonesty or infidelity can also figure in the investigation of insurance claims, which may also cover business interruption and property losses.

Insurance claims and business losses: Insurance policies differ significantly regarding their policy conditions, so these assignments involve a detailed review of the policy, to investigate cover and the method of calculating the loss. A forensic accountant can be asked to assist from either an insured or insurer's perspective in the settlement of the case.

Other examples of assignments involving business losses include contract disputes, construction claims, expropriations, product liability claims, trademark and patent infringements and losses stemming from breach of non-competition agreements.

They may also arise from shareholder or partnership disputes. These assignments often involve a detailed analysis of numerous years' accounting records to quantify the issues in dispute. For example, a common issue that arises is the compensation and benefits to be received by each of the disputing shareholders or partners.

Where claims of professional negligence are involved, the investigations are often approached from two different but complementary perspectives. These are the technical investigation – has a breach of generally accepted accounting practice or auditing standards or other standards of practice occurred – followed by the quantification of loss.

If the professional in question is an accountant, then we are often involved with both perspectives. If the matter involves some other professional the forensic accountant will normally be retained to perform only a loss quantification.

Personal injury and matrimonial claims: A forensic accountant is often asked to quantify the economic losses arising from a motor vehicle accident. They therefore need to be familiar with the legislation in place pertaining to motor vehicle accidents. Cases of medical malpractice and wrongful dismissal also involve similar issues in the calculation of the resulting economic damages.

Matrimonial disputes from a forensic accounting point of view often involve the tracing, locating and evaluation of assets. The assets to be evaluated and valued may be businesses, property or other assets. q www.yourexpertwitness.co.uk

15 15

Expert analysis can help uncover the truth [DESPITE THE MANY stories of local authorities turning off CCTV

cameras to save money, evidence from cameras, when properly analysed and presented in an expert report, can prove invaluable in getting at the truth of a case or in determining a timeline of events.

Such an expert approach is taken by Audio Video Forensics, a Stockport-based company that specialises in the analysis and interpretation of both covert audio and CCTV footage.

The value of such work was most recently seen in the fatal accident inquiry into the Glasgow bin lorry crash in December last year that killed six people. Audio Video Forensics were engaged by the Procurator Fiscal to analyse multiple CCTV images from around the crash scene to determine the speed of the vehicle.

It was the latest in a list of instances where such analysis has been undertaken. In particular, comparing images to determine whether a vehicle caught on camera is in fact the suspect vehicle, as in the Mirror ‘fake photo’ case when Audio Video Forensics were able to show that the truck claimed to be in a photograph of soldiers abusing a prisoner in Iraq had never left the UK. Similar analysis can also exonerate the innocent by showing they were not present at the scene, as demonstrated by a case in Liverpool in 2014.

The expertise Audio Video Forensics is able to deploy is the result of long experience and training in the use of such technology. The company’s founder has an enviable background in high-end sound equipment in both the music and film industries. Indeed he was part of the team at industry leader AMS-Neve that developed the flagship

16 16

www.yourexpertwitness.co.uk

DFC Digital Film Console – used to mix the sound on around 70% of the world’s blockbuster films. The machine won for AMSNeve’s R&D department a coveted Scientific and Technical Award from the Academy of Motion Picture Arts and Sciences (the technical ‘Oscars’) in 1999.

The analysis of sound recordings and their transposition – for both prosecution and defence – is still a core part of the company’s work. q

Camera commissioner publishes second report [ON 19 NOVEMBER the second annual report of the Surveillance

Camera Commissioner was laid before Parliament and published. In his report, the commissioner, former counter-terrorism officer Tony Porter, called for the raising of standards across the CCTV sector, particularly among organisations covered by the Surveillance Camera Code of Practice as set out in the Protection of Freedoms Act. He also said government should consider widening the scope of organisations who must pay due regard to the code.

He called on police forces to build on work around the transparent use of automatic number-plate recognition cameras, body-worn video and automatic facial recognition technology, while consideration should be given to how to effectively regulate such emerging technology.

Local authorities should ‘get a grip’ on surveillance camera schemes that sit outside public spaces in town centres to ensure they meet statutory requirements and there should be strategic leadership among authorities and business to develop a ‘partnership approach’ to CCTV to reduce costs, raise standards and provide a framework for future development.

Mr Porter said: “It’s been a busy and challenging year. I’ve seen lots of great examples of good practice from relevant authorities and those who fall outside the scope of this definition. Equally, there is room for improvement and I’m determined to continue my push to raise standards across the industry. I will continue to work with local authorities and police forces to ensure they meet their statutory duty to pay regard to the code against the backdrop of austerity and as technology moves forward at a rate of knots.” q

Leaving money to a charity in the form of a legacy in a will is becoming increasingly important to many charities both large and small. This year the government climbed on board the campaign to encourage legacy giving by actively supporting the Remember A Charity Week, having changed the rules on inheritance tax from 2012 to make legacy giving more tax efficient.

In the following pages we offer an update on the campaign – including exciting news on the number of solicitors becoming involved – and report on an award for notable achievements in legacy fundraising.

Milestone reached in campaign to encourage legacy giving [

DURING THE AUTUMN the number of solicitors firms and willwriters making a commitment to prompt clients about legacy giving broke through the 1,000 mark, on the back of the annual Remember A Charity in your Will Week staged from 7-13 September.

In the weeks following the awareness drive by Remember A Charity, its member charities, the government and the legal sector event, a further 230 firms became campaign supporters, taking the total number to 1,012 solicitor firms and 74 will-writers alerting clients to the opportunity of legacy giving.

Letters co-signed by Rob Wilson MP, Minister for Civil Society at the Cabinet Office, Damian Hinds MP, Exchequer Secretary to the Treasury, and Paul Wheelhouse MSP, Minister for Community Safety and Legal Affairs at The Scottish Government were sent to over 8,700 solicitors in England, Wales and Scotland, urging them to highlight the option of leaving a gift to charity to their clients.

Ed Vaizey, Minister of State for Culture and the Digital Economy at the Department for Culture, Media and Sport, wrote to all cultural organisations to encourage them to get involved with the campaign and called on the public to consider leaving a gift in their will.

Rob Cope, director of Remember A Charity, said: “Solicitors and professional advisers are hugely important in advising clients about all the options they should consider when it comes to making decisions about what to do with their estate. Their role in highlighting the opportunity and tax benefits of leaving money to charity has been shown to double – and in some circumstances treble – the number of legacy gifts made. That is why we are working hard to get more firms on board each year and are so grateful to government for its continued support.

“For the number of solicitor campaign supporters to have grown by 29% in just a matter of weeks is fantastic news and is likely to lead to a step change in the proportion of people that choose to leave a legacy in the future.”

Seeking to normalise charitable giving during the will-writing process, Remember A Charity is currently conducting trials through the Behavioural Insight Team about the effectiveness of different ways that solicitors can talk to clients about charitable giving. The research will be published next year. q

campaign has achieved notable success over the years and continues to deliver on its mission of growing the legacy market. According to the Annual Benchmarking Survey carried out in 2014 by nfpSynergy, 17% of people in the UK now claim that they have included a gift in their will.

That represents an increase from 14% in 2013.

• Remember A Charity is one of the largest collaborative charity campaigns in the UK, involving more than 150 charities who work towards the shared goal of making legacy giving a social norm. The www.yourexpertwitness.co.uk

17 17

18 18

www.yourexpertwitness.co.uk

Inheritance tax changes prompt legacies campaign [

IN HIS 2011 BUDGET, Chancellor George the regional award. Both winners received a prize Osborne announced a change in the inheritance of £2,500, with their respective charities receiving tax system to reduce the rate from 40% to 36% a matched sum. for those who leave 10% of their estate as a A third shortlisted contender, David Burgess of charitable legacy. The changes took effect from English Touring Opera, was highly commended April 2012. and received a prize of £1,000, with the same As he put it at the time: “If you leave 10% amount also going to his charity. or more of your estate to charity, then the The first winner of the award was Elaine Government will take 10% off your inheritance Bentley, Head of Development at Pallant House tax rate. Let’s be clear. No beneficiaries will Gallery in Chichester. be better off, just the charities – to the tune of Roland Rudd commented: “Elaine is a very £300m.” worthy winner of the first ever Legacy10 Award The Chancellor stated he wanted “…to make for Excellence. She has made a remarkable giving 10% of your legacy to charity the new contribution to the Pallant House Gallery over the Roland Rudd, founding chairman of norm in our country.” past 15 years, creating a legacy campaign from Legacy10 In response to the move a new charitable scratch which will help to ensure that her charity organisation, Legacy10 was established in is sustainably funded for generations to come.”

November 2011 to promote the concept of leaving 10% of an estate to Elaine explained that winning the award generated a lot of charity as a legacy. publicity, with positive results for the gallery.

Its founder, Finsbury PR chairman Roland Rudd, said of the “The award played quite a part in prompting people to contact us organisation: “The goal of Legacy10 is to encourage a change in the regarding their own legacy,” she said. way we in the UK regard legacy giving, and make it the norm for people She was also enthusiastic about the role of the campaign. to leave at least 10% of their wealth to good causes. I am encouraged “Legacy10 reminds people that by leaving 10% to charity, the that a number of people have already made the pledge. I call on others rate of inheritance tax applicable to the rest of an estate is reduced to follow their lead.” to 36%.” q In encouraging people to take the step, the organisation includes the caveat: “We would always recommend that anyone seeking to make a legacy donation should discuss the matter with a qualified solicitor to ensure it accurately fulfils their requirements.”

A further innovation of Legacy10 is its annual Award for Excellence, established in 2013. The award was set up to recognise those who have contributed to legacy-giving in the UK through innovation and delivery and is open to all legacy fundraisers working for a registered UK charity.

Last year the award was split into regional and national categories.

Susan Hughes, legacies manager at the V&A, won the national award and Rosalyn Leclercq, legacy officer at the Essex Wildlife Trust, won

www.yourexpertwitness.co.uk

19 19

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.

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

20 20

www.yourexpertwitness.co.uk

Many potential donors are unsure of inheritance tax breaks [

RESEARCH FROM THE umbrella organisation Remember A Charity has highlighted a lack of understanding among UK pensioners of how inheritance tax works. A comprehensive survey of 2,000 Britons aged 40plus has revealed that 40% are unsure of how the tax will affect their friends and family. Over a quarter (28%) are unsure how it affects their own estate, and many have not researched inheritance tax at all.

Current legislation allows for a 10% reduction in inheritance tax if 10% of an estate is left to charity.

Despite the tax breaks available, however, only a third of British adults are planning to leave a gift in their will.

Rob Cope, director of Remember A Charity (pictured), said: “Legacy giving is the biggest income driver for charities nationally and the fact that a third of Brits are prepared to support causes they are passionate about is very inspiring.

“We want to make the other two thirds aware of the tax breaks available if they are able to support a charity in their will once they have looked after their family and friends. One of the key findings the research identified is the fact that one in 10 British adults aged above 40 are unclear on the taxation.”

The research also discovered that 14% of British adults are not planning on writing a will. One tenth also agree that their potential inheritance tax contribution is ‘more powerful’ than a one-off charitable donation.

In addition, despite plans to increase the threshold to £500,000 in 2017, which will reduce the eligibility of many households to claim the reduction, only 11% will be deterred from leaving a charitable gift in their will. q

www.yourexpertwitness.co.uk

21 21

Cultural customs in marriage –

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

“

Oh, East is East and West is West and never the twain shall meet

[ THE SIX MAJOR religions which dominate the world –

Judaism, Christianity, Islam, Hinduism, Buddhism and Sikhism – each have a spiritual approach in all matters in life. This includes marriage, whether by courtship or arrangement. Secularists, agnostics and atheists have a materialistic approach in their science-based lives, which also includes marriage.

Clearly, cultural, religious and ethnic differences exist in many areas of life. For example, only in British law is everyone considered innocent until proven guilty whereas, in many other countries, the opposite is true. Mitigation, mediation and remorse have more importance in Western countries.

Legal marriages are essential in the West, whereas in the East religion is of overriding importance. Westernised Easterners have marriage certificates from both a religious leader and an official registrar. These are innocent, traditional customs based on good intentions and an understanding of them would help justice.

Nuclear and extended families

In the West the ‘nuclear family’ custom prevails, whereby that family usually consists of a husband, wife and two children. The majority of the population are either Christians or secularists.

Courtship is the traditional way to find a suitable partner – and then to inform the parents that they are to get married, have children and carry the family name forward. ‘Try before you buy, so you won’t have to cry’ is the basis by which courtship works.

In the East an ‘extended family’ system is the norm. The family often consists of a husband, wife, in-laws and many children – this tradition accepts the fact that some children may die from incurable diseases, as antibiotics and other lifesaving medications are not widely available. The majority of people are Muslims, Hindus, Sikhs and Buddhists living alongside some Westernised Easterners. They must have arranged marriages within their tribes or communities. Parents choose spouses and marriage makers earn fortunes. ‘The less you know of others, the more you would stick to one’ is the aim of arranged marriages.

Family and social securities

‘Money makes the world go round’ is a Western saying and ‘money makes the mare go’ is an Eastern saying translated into English. In the West, child care is shared by parents and the government, whereas care of adults is the responsibility of sons, daughters and the state social services – both financially and socially.

22 22

www.yourexpertwitness.co.uk

”

Rudyard Kipling

In the East, child care is shared by parents and their extended family and adult care is the same. Therefore, it is absolutely essential to have only legitimate children to inherit the family name, values, loyalty and wealth.

Family honour and national honour

‘Four things greater than all things are women, horses, power and war’ is another quote from Rudyard Kipling.

In the West this principle is fully applicable. The national honour overrides family honour throughout life, including marriage. The right of personal choice is paramount.

In the East ‘horses’ could be substituted by ‘survival’ but attitudes to women, power and war are the same. However, it is mandatory for a woman to be a virgin at the time of an arranged marriage so as to have legitimate descendants. The mother has a responsibility to chaperone her daughter day and night until she is married, thereafter the husband and his family take over.

Some mothers can cope with this task but others cannot – they would prefer their daughters to be married at as early an age as possible, even as young as 12 years old. These children would not be allowed by their parents to be vaginally examined, even by women doctors and never by male doctors – ‘birds of a feather flock together’.

Child engagements

In the West, male and female children can, of course, become friends but they are not allowed to be engaged to be married before the age of 16 or 18 years. Thereafter, it is self-engagement by the couple who meet for ‘courtship’ at family events or socially without their parents. Marriage between cousins is either forbidden or frowned upon – ‘variety is the spice of life’.

In the East, male and female children are segregated to avoid any sex before marriage and ‘courtship’ is detested firmly. A couple’s engagement is arranged by their parents, preferably within the same family or tribe, from the age of 9 or more often 12 years. The pressure on mothers to protect children from pre-marital sex is great and often unbearable. Marriage between cousins is a custom, so as to avoid marital disputes and divorces.

Child marriages

In the West, children under 16 years of age are not permitted to marry – it is illegal and would lead to criminal prosecution.

In the East, marriages in the early teenage years are commonly

and litigation issues arranged, so that parents can see their grandchildren grow up while they are still alive. The parents have more say in these issues than the couples themselves through an extended family system. Sexual intercourse between a married couple is allowed only after menarche – and the first occasion of intercourse is celebrated traditionally by the families to prove the bride’s virginity.

Pre-marital and extra-marital sex

In the West, in keeping with respect for the right of personal choice, pre-marital and extra-marital sex is accepted by seculars, agnostics and atheists – although not by catholics.

In the East, pre-marital and extra-marital sex by women is considered as a breech of family honour and is punished by their own family members, including the father and brothers. This custom is exercised by all major religions and the punishment is announced publically so as to deter others.

It is easier to control women than men in the East. For uncontrollable men, local ‘red light areas’ are provided and supervised so as not to disturb other women in the neighbourhood. The role of the police in this differs from one country to another.

Birth certificates

In the West, birth certificates issued by a registrar are essential for every citizen. They are used for social, educational, employment and legal purposes.

In the East, birth certificates were non existent in countries which were originally European and American colonies. Since independence, many of these countries have introduced them and the stated date of birth on these passports is legally accepted worldwide.

Interestingly, when I was a visiting a civilian medical officer in a Young Offenders Prison in London, I met an Eastern prisoner whose age on his passport was 16 – however he had a beard and looked at least 40!

The other prisoners, all under age 18, called him ‘uncle’ and in fact he acted like an uncle to them.

Marriage certificates

In the West, everyone has to have an official marriage certificate from a registrar. It is illegal, for both men and women, to have more than one spouse at the same time.

In the East, a woman is allowed only one husband at a time. In Islam a man is allowed to have two wives, and on rare occasions up to four. This is both for the financial care of poor women and for cases where the first wife happens to be infertile as extra-marital sex is not

permitted. Only a son can inherit the family name and property and every woman has to be financially supported by her husband.

Death certificates

In the West, every family is given a death certificate in respect of their deceased relative straight away or, if there are suspicious circumstances, after a post mortem.

In the East, in colonial times, there were no death certificates issued by rulers. Since independence, death certificates are issued in many countries. In Islam, the deceased have to be buried within 24 hours of death for spiritual reasons and so a relative would request the early issue of a death certificate.

A case for the courts

Recently, in my role as an expert witness in cultural, religious and ethnic issues in litigation, I came across a case where a 40 year old Asian British man went abroad and married a girl aged 13 years from a poor family. They returned to London and had two children. However, due to the personality changes affecting human beings every seven years, they had fallen out of love.

The wife then met a young English lover and left her husband. She then sued him for making love to her in London when she was just 13 years old, even though the marriage had taken place abroad.

It is not uncommon to obtain false birth and marriage certificates from abroad, for a fee, which may look real – ‘money makes the world go round!’ The rest is a long story for another time, but it is important to be aware of such cases. q

www.yourexpertwitness.co.uk

23 23

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

Dr Joshua Adedokun

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

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

www.coates-greetham.co.uk

www.expertpainreports.co.uk

D & HB Associates Ltd

Mr Kim Hakin FRCS FRCOphth

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

Consultant Ophthalmic Surgeon and Expert Witness on ophthalmological matters

www.dandhb.com

www.kimhakin.com

David Bunker Arbitrator & Mediator

Mr Marcus Ornstein

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

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

www.david-bunker.com

www.marcusornstein.co.uk

24 24

www.yourexpertwitness.co.uk

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

Sector Forensics Ltd

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

• Computers • e-Disclosure • Compliance • Indecent Images • Mobile Phones • e-Discovery • Intellectual Property • Fraud

www.md5.uk.com

www.sectorforensics.co.uk

Medical Illustration UK Ltd

Mr Simon Bramhall

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

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

www.migroup.co.uk

www.simonbramhallhpbsurgeon.co.uk

Mr. Michael Hodge

Stockport Psychology Services

Maxillofacial and Oral Surgeon.

• Personal Injury • Criminal Cases • Clinical Negligence

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

www.consultantoralandmaxillofacialsurgeon.co.uk

www.sps.uk.net

Mr Michael Thompson

Dr Thomas C M Carnwath

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

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

www.expertcolorectalsurgeon.co.uk

www.psycholegal.org

Mrs Robyn Webber

Mr William Stuart Hislop

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

Consultant Oral and Maxillofacial / Head and Neck Surgeon.

Specialist in ablative and reconstructive surgery.

www.robynwebber.com

www.wshislop.co.uk

www.yourexpertwitness.co.uk

25 25

26 26

www.yourexpertwitness.co.uk

MEDICAL NOTES [THERE SEEMS TO be no end to the succession of stories about NHS trusts falling foul of the various

regulatory bodies. The latest scandal to rock the sector was the inability of Southern Health NHS Foundation Trust to investigate several hundred unexplained deaths on its watch between 2011 and 2015. The facts are made perhaps even more shocking because among the trust’s main remits are the provision of services to people with mental health problems and those with learning difficulties.

The choice of vagueness in the numbers is deliberate. When finally published, the number of unexplained deaths was put at 722. A leaked version of the report obtained by the BBC just a week prior to its publication, which sparked the public controversy over the issue, claimed to put the figure much higher.

The report, commissioned in 2013 by NHS England, will form part of a wider review of the reporting of deaths in the care of the NHS. It is already known that people with mental health problems are more likely to die at an early age, as a number of studies over the years have found, and people with learning difficulties face similar problems. But to find that their deaths do not merit investigation in many cases is shocking.

• The issue of mental health and hospitalisation was also thrown into relief by the revelation that the number of people detained under the Mental Health Act – or ‘sectioned’, in popular parlance – had increased by nearly 10% in the 12 months to this year. There are also wide discrepancies in the level of care experienced by such people.

Women with mental health problems who die after giving birth are also one of the only groups showing no reduction in recent years. In general, maternal deaths have followed a downward trend, but a worrying number remain among those with mental health issues. Suicides also remain alarmingly high.

The issues surrounding the treatment of people with mental health problems and learning disabilities show no signs of being resolved – or even properly addressed.

• One area where there is some progress being made is that of aesthetic surgery. Following the PIP implants scandal and the Keogh Review, the first moves to introduce an accreditation regime into the sector has been announced by the Royal College of Surgeons. There is also a project being carried out to compile a mandatory register of breast implants, to allow action to be taken if a similar scandal erupts in future.

• Anyone who has undergone surgery of any kind will of necessity be aware of the ‘marking up’ procedure that takes place prior to the operation, and the double checks that are put in place to ensure the correct operation is performed on the right part of the body of the right patient.

Incredibly, ‘wrong site’ procedures still happen. The most up-to-date study found 40 such events in the UK in 2005. A catalogue of errors need to occur for that to happen, as detailed by orthopaedic surgeon Ian Forster.

• When mistakes do take place, we expect some kind of redress. Unfortunately, the government seem determined to make access to that redress as difficult as possible. The proposal to introduce a fixed cost regime on medical negligence claims is opposed by the legal profession, medical charities and experts. q

www.yourexpertwitness.co.uk

27 27

28 28

www.yourexpertwitness.co.uk

Southern report sparks NHS-wide probe into reporting of deaths [ THE PUBLICATION on 17 December

of the independent report into the deaths of people with a learning disability or mental health problem at Southern Health NHS Foundation Trust prompted Health Secretary Jeremy Hunt (right) to announce a review of the way deaths are reported throughout the NHS. The investigation, by audit firm Mazars, was commissioned by NHS England in 2013 after disabled teenager Connor Sparrowhawk drowned in a bath at a Southern Health unit in Oxford. An inquest jury found NHS failings had contributed to the 18-year-old's death.

Mazars found that, of the 1,454 deaths recorded at the trust between April 2011 and March 2015, 722 were categorised as ‘unexpected’ by the trust. Of these, 540 were reviewed and 272 unexpected deaths received a significant investigation.

The report found that many investigations were of poor quality and took too long to complete. Furthermore, there was a lack of leadership, focus and sufficient time spent in the trust on carefully reporting and investigating deaths, a lack of family involvement in investigations after a death and opportunities for the trust to learn and improve were missed.

Responding to the report, Jeremy Hunt told the House of Commons: “The report found that there had been no effective, systematic management and oversight of the reporting of deaths and the investigations that follow. I am determined that we learn the lessons of this report and use it to help build a culture in which failings in care form the basis for learning for organisations and for the system as a whole.”

Jane Cummings, Chief Nursing Officer, said: “Openness, transparency,

learning, improving and working with families should be the core tenets of the NHS, especially where things don’t go right. We commissioned this report following concerns expressed by Connor Sparrowhawk’s family, and we are grateful for their contribution to this publication.

“The report now recommends further action from us and others, in particular that its findings should be shared across England to ensure that deaths are investigated properly. We have jointly committed to ensure that this and the other actions it sets out are taken.”

Jan Tregelles, CEO of Mencap, commented: “For families affected by the review into deaths at Southern Health Foundation Trust, fundamental questions continue to remain unanswered – what caused the deaths of their loved ones and were the deaths avoidable?

“Only four out of 93 unexpected deaths

of people with a learning disability were investigated, which Mazars conclude is inadequate. The government and NHS must as a matter of urgency say how they will support every family to get answers about the death of their loved one.”

In a statement issued on 17 December, the trust’s chief executive Katrina Percy said: “We fully accept that our processes for reporting and investigating deaths of people with learning disabilities and mental health needs were not always as good as they should have been.

“We also fully acknowledge that this will have caused additional pain and distress to families and carers already coping with the loss of a loved one. We apologise unreservedly for this and recognise that we need to make further improvements.”

The publication of the report followed widespread reporting of the expected content after the BBC obtained a leaked copy the previous week.

Alison Eddy, a partner at lawyers Irwin Mitchell, said at the time: “This report is simply shocking and highlights an alarming lack of investigation into unexpected deaths across the very wide regional footprint that Southern Health NHS Trust operates in.

“It seems to suggest that patients with learning difficulties and older patients with mental health issues were somehow less worthy of an investigation which is totally unacceptable as these patients are often extremely vulnerable.”

Following the publication the Care Quality Commission announced it would be carrying out a ‘focused inspection’ of Southern Health NHS Foundation Trust early in the New Year, looking in particular at the trust’s approach to the investigation of deaths. q

www.yourexpertwitness.co.uk

29 29

Doctors respond to Glasgow inquiry [ recommendation

IN DECEMBER the findings of the Fatal Accident Inquiry into the Glasgow bin lorry crash were published. In his report, Sheriff Becket concluded: “It may well be that the single most useful outcome of this inquiry would be to raise awareness of the dangers involved in driving if subject to a medical condition which could cause the driver to lose control of a vehicle.”

One of his recommendations was that the Secretary of State for Transport should instigate a consultation on whether it is appropriate that doctors should be given greater freedom, by the General Medical Council, or an obligation, by Parliament, to report fitness to drive concerns directly to DVLA. Responding to the recommendation, Niall Dickson, the GMC chief executive said: “This is an important and far-reaching report and it is vital that lessons are learnt from this terrible tragedy.

“The responsibility for informing the DVLA about medical conditions sits first and foremost with the patient. But doctors have responsibilities too and we are clear that they do have a vital role in helping to keep the public safe.

“As part of a wider review of patient confidentiality, we have taken steps to strengthen our guidance for doctors, underlining and reemphasising the circumstances in which they already have a duty to disclose information directly to the DVLA – this is where the doctor judges that the patient poses a risk to the wider public if they continue to drive. Were any legal duty to be placed on doctors this would be a matter for the UK Parliament. Obviously if there are any changes to legislation we will review our current guidance.”

Steve Gooding, director of the RAC Foundation, commented: “Thirtyseven million drivers depend on the car for getting about and for those with serious medical conditions there is a real fear around losing their licence. But with the right treatment many illnesses will not lead to

30 30

www.yourexpertwitness.co.uk

people having to hang up the keys. The worst thing motorists can do is ignore medical advice.

“Depriving someone of their ability to drive can create its own set of social and health issues and doctors will take reasonable steps to help keep people mobile, though not at the cost of endangering the wider public. Ultimately the way forward must be for doctor and patient to work together rather than in isolation.” q

Lawyers and charities unite against fixed cost proposals [

ACTION AGAINST MEDICAL ACCIDENTS (AvMA) is one of five national charities that have written a joint letter to health ministers Jeremy Hunt and Ben Gummer asking them to put on hold their proposals to impose a fixed recoverable costs regime on clinical negligence claims. The other signatories are National Voices, SANDS, Birth Trauma Association and Meningitis Now. They argue that the proposals are premature and a potential threat both to access to justice and patient safety.

It was announced in the summer that there would be a formal consultation by the Department of Health on the proposals and the department launched a pre-consultation exercise in which it proposed a fixed fees regime from October 2016 for clinical negligence cases up to £250,000 in damages, a cap on fees for expert reports on liability/causation and quantum/diagnosis and no 'special provisions' to control behaviour on both sides.

AvMA declared: “The Department of Health announced their proposals without any prior discussion with external stakeholders such as patients’ groups and currently intend to press ahead with a consultation on how to implement them at the end of the year, in spite of widespread concerns that have been expressed about their merits or consideration of unintended consequences.”

The Law Society was succinct in its response to the government’s announcement. “The simplest and most effective way of reducing the cost of clinical negligence claims to the NHS is to reduce the harm caused to patients by negligent NHS care,” it said. q

Why you need an expert witness in urology

By CHRIS DAWSON MS FRCS LLDip, Consultant Urologist

[

IN THIS BRIEF article Chris Dawson explains what he has learnt from 11 years of producing medicolegal reports in urology.

Like most specialties the medicolegal work that ensues can be divided between criminal, personal injury and medical negligence cases.

Criminal cases

In the author’s own experience the opportunity for urology expert reports for criminal cases is limited, and predominantly involves rape or sexual assault cases.

The reports are usually commissioned by the defence and suggest that the alleged offence could not have taken place because the defendant suffers from erectile dysfunction.

The role of the expert will be to examine the defendant’s records.

In routine clinical care the fact that a patient claims to have erectile problems is taken for granted. In criminal cases the veracity of the defendant is for the court to decide. There is no available test to prove the defendant is incapable of having a penile erection.

Personal injury

Personal injury work is common for the expert witness in urology and usually involves

condition and prognosis reports for male claimants involved in road traffic accidents (RTA).

Often these claimants have multiple injuries involving pelvic trauma, and are left with erectile dysfunction due to pelvic nerve and blood vessel trauma.

Causation is usually straightforward in these cases. Many such patients will be helped with PDE5 inhibitors such as Viagra or Cialis. Failure to respond to these treatments often suggests a poor prognosis.

Pelvic trauma may also cause male urethral disruption or injury leading to urethral stricture.

Urethroplasty or reconstruction may be required.

Claimants of either gender may suffer abdominal trauma during an RTA leading to damage or loss of a kidney. In the majority of cases the other kidney will compensate for this loss, but the expert urologist will be required to comment on prognosis and the risk of damage to the other kidney.

Medical negligence

Compared to other specialties urology appears less prone to claims of negligence, but one notable exception is the management of testicular torsion.

The usual symptom of sudden onset of

pain due to twisting of the testicle around the spermatic cord and signs of swelling of the affected testicle, may be difficult to diagnose.

Early intervention is paramount to prevent testicular ischaemia and loss of the testis.

Ischaemia can occur as soon as four hours after the onset of torsion.

Where there is diagnostic uncertainty the affected scrotum should be explored surgically as soon as possible. Most claims arise when exploration has allegedly not taken place early enough, and the testis has required removal.

Reports in this area usually require a view on liability and causation, and sometimes also extend to condition and prognosis.

Medical negligence cases for females predominantly involve urogynaecology. The ureter runs in close proximity to the uterine cervix and is prone to injury at this site during gynaecology procedures such as hysterectomy, removal of large ovarian cysts or emergency caesarian section. The bladder may also be injured during these procedures.

Liability will be a matter for the expert witness in gynaecology to decide upon, and the urology expert witness will be asked to comment on matters of causation and condition and prognosis. q

www.yourexpertwitness.co.uk

31 31

32 32

www.yourexpertwitness.co.uk

Latest report into perinatal maternal deaths welcomed by professions [ON 8 DECEMBER the MBRRACE-UK

team at the National Perinatal Epidemiology Unit published its latest report, Saving Lives, Improving Mothers’ Care. Based at the University of Oxford, MBRRACE-UK (Mothers and Babies: Reducing Risk through Audits and Confidential Enquiries across the UK) presented the findings of its maternal mortality surveillance from 20112013 in the UK. The report also carried the lessons learned from the confidential enquiries into maternal deaths of women with mental health-related problems, substance misuse, cancer and blood clots and women who died by homicide.

In a joint statement, the Royal College of Obstetricians and Gynaecologists (RCOG) and the British Maternal and Fetal Medicine Society (BMFMS) issued a response to the report.

The statement said: “We welcome this report from the MRRBACE-UK team. It is gratifying to note that there has been a decrease in overall rates of maternal death, and that deaths from influenza and pre-eclampsia remain low. However, we are concerned that rates of indirect deaths remain high and that two thirds of the women who died had medical co-morbidities. These include deaths from preexisting conditions that are not directly related to pregnancy, such as mental health problems, epilepsy, heart disease or cancer.”

The report found that, overall, the maternal mortality rate in the UK continues to fall, largely as a result of a reduction in deaths from ‘direct’ pregnancy causes. However, it found that the rate of deaths from ‘indirect’ causes has not reduced significantly. These are described as ‘deaths from conditions not directly due to pregnancy but existing conditions which are exacerbated by pregnancy, for example, women with heart problems’. More of these deaths will need to be prevented in the future, the report says, to reach the UK Government target of a 50% reduction in maternal deaths by 2030.

The RCOG/BMFMS response stated: “It is particularly saddening that around one quarter of all maternal deaths between six weeks and a year after childbirth are related to mental health problems and one in seven of the women who died in this period committed suicide.”

RCOG president Dr David Richmond said: “Despite the overall decrease in the UK maternal death rate, it is clear that the challenge is now to reduce deaths from indirect causes which have remained static for the last 10 years.

“Greater integration between primary and secondary care is urgently needed to ensure that women with significant medical and psychiatric conditions are assessed before becoming pregnant and referred to specialist care in a timely manner to ensure that right support is provided throughout a woman’s pregnancy and beyond.

“No woman should suffer in silence and we encourage women and their families to speak to their GP, health visitor, midwife or obstetrician about any worrying signs and symptoms – there is help and support available.”

Mr Tim Overton, a consultant in fetal medicine and president of the BMFMS, added: “The major role of mental ill-health in deaths of women

in the first year after giving birth emphasises the importance of early detection and effective treatment of mental ill-health in such women.

Although the red flag signs described in the report are helpful, the fact that 40% will have no access to specialist perinatal mental health services is deeply worrying.

“Many of the women who died were from vulnerable groups within society, with complex social problems in addition to medical and mental health issues. It is important that care is effectively delivered to women with disadvantaged backgrounds.

“As always, this report highlights key areas for improvement. It is reassuring that resources have been pledged in the recently announced ambition by the Secretary of State for Health to reduce the rate of maternal deaths in England by 50% by 2030. The National Maternity Review, due to be published early next year, also presents a key opportunity for initiatives to address many of the issues raised in this report.”

The Royal College of Midwives, meanwhile, called for urgent investment. RCM director for midwifery Louise Silverton said that it was concerning that deaths related to medical and mental health problems had not fallen significantly.

“This includes women with pre-existing medical conditions, where their condition is often exacerbated by pregnancy. These women with complex medical needs require good preconception care and additional support after birth,” she said.

On a recommendation that maternity services should arrange follow-up appointments and not leave the matter to GPs, she added: “We acknowledge that this is vitally important in ensuring vulnerable women and those most in need of additional mental health care are not missed. To achieve this we need more specialist mental health midwives to provide continuity of care for these women.” q

www.yourexpertwitness.co.uk

33 33

34 34

www.yourexpertwitness.co.uk

Guideline aims to reduce risks from preterm birth [

IN NOVEMBER A new guideline on preventing early birth was issued by NICE, the National Institute for Health and Care Excellence.

Preterm birth is defined as a situation where a baby is born before 37 completed weeks of pregnancy. In 2012, over 52,000 babies – around 7.3% of live births – were born preterm in England and Wales. Preterm birth is the leading cause of newborn deaths and the second leading cause of deaths in children under five. Babies who survive have increased rates of disability. Figures for these births have not declined over the past 10 years.

The latest NICE guideline identifies ways to prevent preterm birth, to diagnose and manage preterm labour, and reduce the associated risks to the baby. It sets out a range of recommendations for healthcare professionals treating women who are likely to deliver preterm.

Healthcare professionals should offer information and support to women with suspected, diagnosed or established preterm labour, or those who are having a planned preterm birth. The information should be given as early as possible, taking into account the likelihood of preterm birth and the status of labour. Principles in the NICE guideline on patient experience in adult NHS services should also be followed.

Further recommendations say that professionals should: • Bear in mind that the woman (and her • family members or carers) may be • particularly anxious • Describe the symptoms and signs of • preterm labour and explain to the woman • about the care she may be offered • Explain about the neonatal care of preterm • babies, including location of care Preterm prelabour rupture of the membranes (P PROM) is where the amniotic sac ruptures or breaks before 37 weeks of pregnancy but the woman is not in established labour. It is associated with only 2% of pregnancies, but is linked to 40% of

preterm deliveries and can raise the risk of death or disability amongst newborns.

NICE recommends that if a woman is reporting symptoms that suggest P PROM, a speculum examination should be offered for pooling of amniotic fluid. If pooling of amniotic fluid is not observed, diagnostic tests should be performed. Women with P PROM should be offered antenatal prophylactic antibiotics to reduce the risk of infection. Furthermore, a combination of clinical assessment and tests should be used to diagnose intrauterine infection in women with P PROM. The guideline recommends that healthcare professionals should discuss the general benefits and risks of caesarean birth and vaginal birth with women likely to deliver preterm, and explain the benefits and risks of caesarean section that are specific to gestational age. Healthcare professionals should explain that there are no known benefits or harms for the baby from caesarean section, but that the evidence is very limited.

The guideline was welcomed by Bliss, the charity for premature and sick babies. In a statement the charity said: “60,000 babies are born preterm in the UK and sadly many of these won’t survive or will be born with longterm health complications. The new guideline, aimed at health professionals, sets out the best treatment pathways for women at risk of, or in suspected or confirmed, preterm labour with the intention to prevent or delay early labour.”

The charity’s chief executive Caroline Davey said: “The care that a premature baby receives in the first few hours of its life is crucial, as they are at greater risk of a variety of health complications. It is vital that these babies and their mothers receive the best care and support in order to minimise these complications.

“Bliss wholeheartedly supports the new guideline, and believes it will be instrumental in improving outcomes for babies born prematurely and their mothers.” q

BMJ study highlights weekend care issues [

A STUDY PUBLISHED in the British Medical Journal on 25 November suggested that rates of perinatal death and other complications for both mothers and babies are higher at weekends than on week days.

The report prompted a response from Dr David Richmond, president of the Royal College of Obstetricians and Gynaecologists (RCOG).

Dr Richmond said: “Although no definitive conclusions can be drawn from these results, they emphasise the need to identify the possible causes in order to ensure that women are receiving high-quality care on any given day of the week.

“The UK is a safe place for women to give birth; however pressure on maternity services is growing as women are having more complex pregnancies due to the rise in older mothers and maternal obesity. Appropriate numbers of maternity staff underpin a safe and quality service and adequate ‘out-of-hours’ senior staffing remains a key issue in maternity care.

“This includes appropriate staff training and supervision, ensuring good outcomes outside normal working hours and effective planning and risk management. More robust evidence on the quality of care afforded by different models of labour ward staffing is also required.” q

www.yourexpertwitness.co.uk

35 35

36 36

www.yourexpertwitness.co.uk

How to make sure a surgeon is operating on the right patient and in the right place

By MR IAN FORSTER MBBS FRCS FRCS(Ed), consultant orthopaedic surgeon

[

WRONG SITE SURGERY is, despite ever changing safeguards, a major complication which is devastating for the patient, the family and the surgeon.

There were 40 such claims in England in 2005 which, considering the number of orthopaedic and other operations that are performed, is reassuringly small. However, despite an increasing number of checks prior to surgery these claims have not disappeared as yet.

The first stage of any operation is to obtain consent. This is not only just before the operation but is ongoing from the first out-patient consultation. Clearly a thorough knowledge of all procedures the surgeon performs is essential. The surgeon needs to know how to do the operation, when to do the operation but most importantly when not to do the operation!

It is important to be sure that patients know what they are letting themselves in for and that it is right for them. At the first consultation when an operation is recommended the surgeon needs to go into the benefits and pitfalls involved. This helps the patient make up their own mind. If there is any doubt, my practice is to arrange another appointment for further discussion.

There is a further opportunity to discuss matters at the pre-operative assessment clinic when patients coming for major surgery are checked as to their medical state. At that time it is customary to discuss, in detail, everything the patient will undergo and, again, possible complications and their prevention.

Finally, the surgeon formally explains everything in great detail on the day of the operation. Consent forms these days have expanded to include details of almost everything that is said. The patient is expected to be taken through each statement before signing and is given their own copy. All common and major complications and possible outcomes should be discussed and written on the form. If a complication is missed and then occurs this could be construed as negligence.

If the patient does not understand what is being said, it is not now possible to get a relative to sign for them, although this used to be the practice in the past. These days two competent surgeons need to agree that the procedure is necessary and then the operation can happen.

This does not mean that the family cannot be involved in the decision and it is important that they are fully informed.

Despite this, in disputes as to whether the correct consent has been taken, my experience is that solicitors don’t usually advance a case on this alone. Clearly when this happens it is one person’s word against another’s – which is a very grey area.

At the time of consent it is usual for the surgeon, or a suitably trained deputy, to mark the limb. In other branches of surgery marking is less usual but in orthopaedics it is obligatory and the arrow used must be visible in the operative field. Some surgeons write the nature of operation and sign it and all this should be done in permanent marker.

On leaving the ward a check list is completed which includes both marking and consent. Patients do not leave the ward without this check list being correctly filled in. In the theatre the form should be checked again and also in the anaesthetic room. When the patient is wheeled into theatre there is a specific ‘time-out’ before even prepping the area.

The notes and X-rays are checked, as is the check list itself as well as the wrist band of the patient. All patients have a wrist band whilst in hospital which, as well as their name and their number, lists any allergies.

You would have thought that with all these checks, wrong site surgery would not happen – but unfortunately this is not the case. However, because there are so many checks it needs a number of people to be ‘off the ball’ for a mistake to occur. Clearly any such mistake leads to negligence claims which are indefensible.

In addition, such a mistake will usually be followed by a detailed enquiry by the hospital itself to find out what exactly went wrong and its future prevention.

Disputes about whether sufficient information has been given to allow proper consent are always difficult. In truth, the enquiry can be so long after the event that the memory of both patient and surgeon may not be perfect. What is written on the consent form helps but doesn’t show exactly what was said, only the subjects discussed. However, wrong site surgery is more straightforward and this is unlikely to be defended. q

www.yourexpertwitness.co.uk

37 37

Use an expert if you want to get the picture [

IT IS A sad fact that a sizeable proportion of the budget of the NHS is taken up with compensation claims for negligence. The NHS Litigation Authority makes no bones about being ferocious in its defence of claims, so the evidence offered has to be precise and an accurate representation of the injury has become more important.

Similarly, in general personal injury cases, expertly-produced imagery has become vital to prove a case.

Medico-legal photography is widely used in expert medical reports in clinical negligence or personal injury cases. Interestingly, photographs

38 38

www.yourexpertwitness.co.uk

can also be produced and used prior to a report and may obviate the need for one. That saves time and money for all the parties and may save court time.

Naturally, the quality of the photography plays a large part in the effectiveness of the evidence. Professional clinical photography has been carried out for the NHS as part of its work for many decades.

Recently, however, a number of professionals have been offering their expertise on a freelance basis. Alternatively, for personal injury and even clinical negligence cases, a number of NHS trust photography departments offer their services on a commercial basis.

One such is the team based at Chelsea and Westminster Hospital, known as Medical Illustration UK. They point out the advantage of early photographic evidence, stating: “Photographers can record a client in hospital immediately after an accident or years later to show permanent scarring. Early records are useful in conveying the suffering and trauma suffered by the client that may not be obvious after the healing process.”

That ability of expert photography to portray long-term effects of an injury is echoed by the Photographics Group, based at the UCL Institute of Child Health.

“Furthermore, subsequent photographs can show permanent scarring, deformities and other cosmetic effects of the injury. Images can also be used to show disorders of function, such as the inability to grip an object, or one-sided facial paralysis,” they said.

In the post-Jackson cost-conscious personal injury sector there is more than ever a need for photographic evidence to be produced using the most stringent standards. q

Setting standards in

illustration

medical

for over 40 years

[THE INSTITUTE OF MEDICAL ILLUSTRATORS (IMI),

was founded in 1968 to bring together the several disciplines of medical illustration – and for over 40 years the Institute has set and maintained standards for the profession.

For its membership, IMI provides a rich network of fellow professionals, working together to improve and develop medical illustration by means of conferences, courses and regional meetings. IMI introduced the first Diploma in Medical Illustration in this country and, in conjunction with Glasgow Caledonian University, this was validated as the first BSc in Medical Illustration in the world.

The Institute provides its members with the umbrella of a Code of Conduct, a Code of Responsible Practice and a Continuing Professional Development scheme, which guarantee clients will be served by well qualified and up-to-date practitioners.

IMI’s major refereed publication, the Journal of Visual Communication in Medicine, is widely recognised as the leading European publication in the field, while IMI News, its sister publication, carries up-to-the-minute reports of current activity along with the Institute’s extensive website.

IMI has published a wide range of national guidelines which have been developed by clinical photographers in consultation with specialist clinicians and are guides to best practice in medical illustration.

The Institute’s own Quality Assurance Standards were specifically designed to suit the needs of the profession and the criteria provide a benchmark for all to follow. QAS Level 1 provides a guaranteed baseline for departments who undertake training and therefore ensures that degree trainees are provided with all that is required to meet their needs. QAS Level 2 is designed to examine overall organisational excellence, testing not only that systems are in place, but also that knowledge and understanding of policies, procedure and protocols are apparent.

IMI is an active member of the Committee for the Accreditation of Medical Illustration Practitioners (CAMIP). To be on that register a medical photographer must have relevant qualifications, be up to date with his or her professional practice and abide by the professional Code of Conduct. All qualified IMI members since January 2001 are entitled to call themselves Registered Medical Illustration Practitioners and to use the letters RMIP after their name.

In all branches of photography it makes sense to use a professional – a portraitist for photographs of your family or an architectural photographer for a new building – so for a medical client, a personal injury case, IMI strongly recommend that you use a professional, registered medical photographer.

A personal injury case is basically a medical case. It might be that the claimant has experienced physical trauma resulting in scarring or a limb deformity, it could be a medical negligence case where the patient has been treated incorrectly or has been left with unnecessary scars or trauma to the skin. In all these cases it makes sense to use a qualified and registered medical photographer. All such photographers will be used to dealing with these cases and they will record the lesions, scars, deformity or whatever the evidence is in a completely clear and objective manner.

The Institute of Medical Illustrators has a ‘Find a Professional’ page on their website and it is here that the contact details of qualified, CAMIP registered medical Illustrators can be found. The website also has full details of the Institute’s other work and activities.

By choosing an IMI member and a registered medical photographer, you can be certain that your client will be seen and photographed by a professional who understands the medical condition and how it should be documented objectively and unambiguously. q • For further information on IMI visit www.imi.org.uk and on CAMIP visit www.camip.org.uk. www.yourexpertwitness.co.uk

39 39

Coroner identifies failures at Kent hospital prior to heart attack death [

THE CORONER AT the inquest into the death of a 61-year-old Kent man identified a number of failings at Medway Maritime Hospital, where he was being treated.

The inquest, held in Maidstone in September, heard how Anthony Baker died in March 2014, having suffered a cardiac arrest. He thereafter suffered multiple organ failure after junior doctors and nurses failed to recognise signs of internal bleeding and to diagnose a false femoral aneurysm.

Shortly before the inquest, Medway NHS Foundation Trust accepted that there were failures in Mr. Baker’s care and that these caused his untimely death. The trust was placed in special measures in July 2013 following the Keogh Mortality Review.

In her conclusion, coroner Kate Thomas said: “Anthony Baker underwent an angiogram and stenting procedure following which he developed a false aneurysm which ruptured. Although he displayed a number of symptoms from which a rupture could have been diagnosed over a period of 15 hours there was a failure to do so. Thereafter, Mr Baker went into cardiac arrest due to internal bleeding and, despite surgery, he declined and died on 31 March 2014 at Medway Maritime Hospital.”

The inquest also heard that there was a lack of awareness on the ward about the complications associated with angiography, and appropriate monitoring for such complications. There was no weekend cover provided by cardiology consultants that junior doctors could access. This has since changed and a consultant cardiologist is available at the hospital on Saturday and Sunday mornings.

Steps have also been taken to change a culture whereby junior doctors and nurses were said to have been unwilling to escalate concerns. The trust’s induction programme tells new joiners to escalate any instances of concern.

40 40

www.yourexpertwitness.co.uk

Mr. Baker’s widow said: “I am relieved that the coroner has identified failings and I sincerely hope, as I know would Tony, that as a result of the changes made at the trust no other person has to go through this trauma again.”

It was discovered that Medway Maritime Hospital had not performed a full untoward incident investigation. A Patient Case Safety Review (PCSR), which decides if an incident is serious and requires further investigation, was completed by a matron. The medical director did not approve the incident as serious and so a full investigation did not happen. The PCSR, completed in April 2014, was withheld from the family until February 2015.

Dawn Treloar, medical negligence solicitor at Hodge Jones and Allen, who represented the Baker family, said: “Medway NHS Trust has already actioned some of the shortcomings identified in our evidence to the inquiry into Mr Baker’s untimely death.

“We sincerely hope that these actions are effective in improving patient safety, and that any further training issues are promptly identified and met. It is essential that lessons are learned and incidents such as this are avoided in the future.” q

Women heart patients missing out on rehabilitation [ONLY 38% OF female patients who have a heart attack,

angioplasty or bypass surgery receive any cardiac rehabilitation – just over 14,000 out of the 38,500 eligible female patients in England in 2013/14. That’s according to a report from the National Audit of Cardiac Rehabilitation, which is funded by the British Heart Foundation and based at the University of York.

It means that more than 24,000 female heart patients are missing out, putting them at risk of further heart attacks. In England, around 122,000 patients are eligible for cardiac rehabilitation but just 47% receive it, despite a government target of 65%.

The associate medical director of the British Heart Foundation, Dr Mike Knapton, said: “It is appalling that less than half of eligible female heart patients receive cardiac rehabilitation. Thousands of women are missing out on a vital step in their recovery, increasing their risk of another heart attack.

“That’s why health services urgently need to make rehabilitation more accessible to women, who are either not referred or are put off attending, to help save more lives.” q

The effects of pain can run deeper than its physical presence

By DR CHRISTOPHER JENNER MB BS FRCA FFPMRCA, consultant in pain medicine at Medicolegal Associates Ltd

[

SOLICITORS AND BARRISTERS who are involved in personal injury and clinical negligence claims are increasingly finding that their clients need to be examined and assessed for on-going, long-term pain problems. That may require a consultant in pain medicine as an expert witness: someone who has had extensive training and experience in the treatment of patients with long-term pain conditions, including musculoskeletal and neuropathic (nerve) pain.

Pain is a complex area of medicine, with more than 90 different types of pain conditions identified, and is a very common problem. Chronic pain is associated with approximately one in seven of the population of the western world and accounts for a significant proportion of healthcare budgets.

When considering pain in the medicolegal arena, it can often be a barrier to rehabilitation; but with the early intervention of a pain clinician, providing the correct diagnosis and treatment, it is often possible to significantly improve the overall outcome for clients.

What is pain?

Pain is defined by the International Association for the Study of Pain as an unpleasant sensory and emotional experience, which is primarily associated with tissue damage or described in terms of tissue damage, or both. A more useful definition for solicitors to use with their clients is to acknowledge that ‘pain is whatever they say it is’.

Pain comes in two time courses – acute pain and chronic pain. By definition acute pain lasts for less than three months and chronic pain lasts for three months or more. Examples of acute pain include post-operative pain, pain following trauma such as road traffic accidents and a number of painful medical and surgical conditions including appendicitis, peritonitis

and other acute inflammatory conditions.

Chronic pain includes more common long-term pain complaints such as neck pain, lower back pain and joint pain.

Types of pain

Pain is divided into two major types: nociceptive (normal) pain and neuropathic (nerve) pain.

Nociceptive pain occurs where the pain signalling pathways are intact and functioning properly. This is found particularly in spinal pain and other musculoskeletal pains. Examples include lower back, neck, hip and other joint pain.

Neuropathic pain is a form of pain where there is damage and/or dysfunction to part of the sensory nervous system, causing hypersensitivity of the nervous system. Clients often use very florid language to describe this pain, including sharp, stabbing, burning or electrical shock-like pain.

The client may also experience significant sensory dysfunction, with hypersensitivity of the skin, weakness and muscle wasting.

www.yourexpertwitness.co.uk

41 41

42 42

www.yourexpertwitness.co.uk

Examples of neuropathic pain in medicolegal practice include fibromyalgia, mysofacial pain, post-amputation pain and post-operative neuropathic pain.

In extreme cases, where limb movement has been adversely affected by pain, it can lead to disuse of the limb, causing muscle wasting and in some cases fibrosis and contractures.

Biopsychosocial approach to pain

Pain is considered to be a multi-faceted problem which includes: • Biological – patients have physical pain • Psychological – increased incidence of anxiety and depression • Social – the societal impact of pain can be profound, with patients • having difficulties with personal relationships, their home-life and the • workplace.

In some cases clients may face losing or have lost their employment and this can be a significant factor in the assessment of a medicolegal claim where long-term pain is involved.

In summary, the issue of pain is an increasingly complex area in the medicolegal arena. Obtaining early input from an experienced consultant in pain medicine, who is able to review a claimant’s medical records and contextualise what is said – and, indeed, what is unsaid – can be particularly helpful in terms of assessing the maximum opportunity for their recovery, as well as the severity and potential duration of a claimant’s symptoms.

The appointed expert consultant in pain medicine should be able to assess and clearly explain the complexities of a diagnosis and the causation, and provide a prognosis independently or as part of an appointed medical expert witness team, to assist the court in making an appropriate award for general damages for pain, suffering and loss of amenity. q • Dr Jenner is a leading pain specialist. He is consultant in pain medicine at Imperial College Healthcare NHS Trust, based at the Pain Clinic at Charing Cross Hospital, and medical director of the London Pain Clinic.

Tel: 01932 480022 or visit www.medicolegal-associates.com.

Parliament sees launch of chronic pain resource [

ON 18 NOVEMBER 2015 the Chronic Pain Policy Coalition (CPPC) launched its Parliamentary guide to chronic pain, The Hidden Suffering of Chronic Pain, in the Jubilee Room at the Palace of Westminster.

There were 80 people in attendance, including healthcare experts, peers and parliamentarians. The CPPC introduced the booklet and explained how much chronic pain affects the British population. It is estimated that 14 million people endure chronic pain, of which 25% end up unable to work or lose their job.

The Chronic Pain Policy Coalition is a forum established in 2006 to unite patients, professionals and parliamentarians in a mission to develop an improved strategy for the prevention, treatment and management of chronic pain and its associated conditions.

At the meeting the Faculty of Pain Medicine of the Royal College of Anaesthetists also launched its Core Standards for Pain Management Services in the UK document. The document is a collaborative, multidisciplinary publication providing a robust reference source for the planning and delivery of pain management services across the UK. It is designed to provide a framework for standard setting for healthcare professionals, commissioners and other stakeholders.

The publication of the document also marked the launch of the faculty’s ‘Right Patient Right Professionals Right Time’ initiative. q www.yourexpertwitness.co.uk

43 43

Accuracy of intoxicated victims’ evidence unaffected but less complete [

PEOPLE ARE OFTEN concerned about the accuracy of testimony given by victims of sexual assault who were intoxicated when the crime was committed. However, a study by researchers at the University of Leicester has found that, while alcohol intoxicated participants report fewer pieces of information about an assault, the information that they do provide is just as accurate as sober participants.

The paper, Alcohol and remembering a hypothetical sexual assault: Can people who were under the influence of alcohol during the event provide accurate testimony?, was published in the journal Memory and is one of the first studies to use a placebo controlled trial that investigates the effects of alcohol on memory within the context of sexual assault.

The team examined the influence of alcohol on remembering an interactive hypothetical sexual assault scenario in a laboratory setting using a balanced placebo design. Female participants completed a memory test 24 hours and four months later.

Participants reported less information – by responding ‘Don’t know’ more often to questions – if they were under the influence of alcohol during the scenario than those who were not.

44 44

www.yourexpertwitness.co.uk

However, the accuracy of the information intoxicated participants reported did not differ compared to sober participants, suggesting intoxicated participants could accurately retain information from the event just as well as those who were sober.

Dr Heather Flowe from the university’s Department of Neuroscience, Psychology and Behaviour, who led the project, said: “Serious violent offenses often involve intoxicated witnesses and victims. In particular, in sexual assault and rape cases victims and perpetrators are likely to have been under the influence of alcohol during the crime.

“When a victim is intoxicated during the crime, questions about the accuracy of testimony are raised in the minds of criminal investigators.

Out of these concerns, the police might forgo interviewing victims who were intoxicated during the offence.

“On the other hand, almost always in sexual offences, the victim is the only one who can provide information about the crime to investigators. Consequently, it is not likely that a crime will be solved without victim testimony.

“Bearing this in mind, we wondered whether intoxicated victims take their mental state

during the crime into account when rendering their testimony to investigators. If they take into account that their memory has been impaired by alcohol, they should report information only when they believe it is likely to be accurate.

“Accordingly, intoxicated victims should report less information overall, but the accuracy of the information they do report might not be different from sober victims.”

The findings are being applied to develop National Guidelines regarding how the police should interview sexual assault victims who were intoxicated during the crime, with the university working together with the Crown Prosecution Service and Leicestershire Police. q

Drug driving changes include prescription drugs

Toxicology is not just for crime scenes

By PROFESSOR KEN DONALDSON BSc PhD DSc FSB FFOM FRCPath Specialist in Lung Toxicology

[ IN MOST PEOPLE’S minds

[EARLY IN 2015 the law on drug driving was changed to include

specific drugs –both illicit and prescription.

According to the Department for Transport: “Motorists who get behind the wheel after taking illegal drugs face a criminal record, loss of their licence for at least a year and a fine of up to £5,000.

The legislation makes it illegal to drive with certain drugs in the body above specified levels, including eight illegal drugs and eight prescription drugs. People using prescription drugs within recommended amounts will not be penalised.”

New screening equipment has been introduced to test suspected drug drivers. Police officers can screen drivers for cannabis and cocaine at the roadside. They will be able to test for these and other drugs, including ecstasy, LSD, ketamine and heroin at a police station, even if a driver passes the roadside check. New devices that can test for a greater number of drugs at the roadside will be developed in the future.

Road Safety Minister Robert Goodwill said: “This new law will save lives. We know driving under the influence of drugs is extremely dangerous, it devastates families and ruins lives. The government’s message is clear – if you take drugs and drive, you are endangering yourself and others and you risk losing your licence and a conviction.”

The Royal Pharmaceutical Society commented: “Primarily intended to catch those driving whilst taking illegal drugs, there are a number of prescription medicines which are now also covered by the new law. The specified limit allows for normal recommended doses that most patients would be prescribed if they were taking their medicines as intended.” q

toxicology is inextricably linked with poisoning – the purposeful or accidental swallowing of a chemical that can hasten death.

In fact, most toxicologists are not concerned with this aspect of toxicology, but with accidental exposures to environmental toxins by inhalation, skin absorption or swallowing, often in an occupational setting.

Typical of such toxins are gases, chemicals, metals and organic solvents, as well as dusts like asbestos and physical agents like heat, sunlight and radioactivity. The biological system inside our body is very finely balanced and can be disrupted by these toxins. It can recover from small amounts of toxic imbalance but beyond that disease starts to set in. Every toxin has the capability of disrupting the biological system if there is enough of it.

However, self-evidently, substances vary in how harmful they are – their ‘toxic potency’. So the most useful measure of the potential harmfulness of a toxin is its toxic potency. The ‘dose response’ is the measure toxicologists use to determine toxic potency. In a controlled experiment, the dose or amount of toxin, is gradually increased until a harmful response is detected – the most potent toxins have harmful effects at a low dose while larger amounts of less harmful substances are needed to cause harm. The dose response is usually carried out on animals, but some human accidents and controlled studies can also provide information.

In a legal case arising from an accidental exposure to some toxin, harm is claimed and denied for the received dose. The competent toxicologist can review the dose response literature for that chemical and provide opinion on the plausibility that such harm could have arisen consequent to the claimed exposure. This is extremely useful advice to the court in determining liability. q

www.yourexpertwitness.co.uk

45 45

46 46

www.yourexpertwitness.co.uk

Mental capacity:

Background and assessment

By DR GIANETTA RANDS MA(Oxon) MB BS FRCPsych consultant psychiatrist at Re:Cognition Health. Dr Rands is a specialist in dementias, mental capacity and mental illnesses in older people

[ MENTAL CAPACITY IS the ability to make decisions. The

Mental Capacity Act (2005) (MCA) and its Code of Practice in England and Wales is the legislation for decision making when people lack mental capacity and for planning decision making should mental capacity be lost in the future.

In 2007 the Deprivation of Liberty Safeguards (DOLS) were added. The House of Lords scrutinised this law in 2014 and found that understanding and application of the MCA was poor. The Cheshire West Supreme Court judgement of 2014 extended the remit of DOLS in ways that make this legislation not fit for purpose, expensive and conflicting with the original principles of the MCA. The Law Commission consultation on Mental Capacity and Deprivation of Liberty closed on 2nd November 2015.

The five basic principles of the MCA are: 1. A person must be assumed to have capacity unless it is established that they lack capacity (assumption of capacity) 2. A person is not to be treated as unable to make a decision unless all practicable steps to help him do so have been taken without success (maximising decision making capacity) 3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision 4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests (doctrine of best interests) 5. An act done, or decision made, must be the less restrictive option in terms of the person’s rights and freedom (least restrictive option) The concept of mental capacity is an existential one and is linked with individuality, human rights, theories of self and autonomy. In the UK, at any one time, there are about two million people who lack mental capacity.

About one million have permanent, progressive and irreversible conditions that impair their capacity such as dementias, head injuries and intellectual impairments and a further one million have reversible and treatable conditions such as acute mental illness and delirium. In these conditions mental capacity may fluctuate.

All professionals who work with people needing to make significant decisions should be able to assess mental capacity.

This includes lawyers, doctors, nurses, social workers, police and teachers.

Capacity Assessment is a two stage process: Stage 1: Is there an impairment of, or disturbance in, the functioning of this person’s mind or brain?

If there is uncertainty about this a detailed neuropsychiatric assessment may be needed to confirm a diagnosis and estimate prognosis.

Sometimes the diagnosis is not clear – eg pseudodementia due to depression, subacute confusional states. Sometimes more time is needed for capacity to stabilise – eg post head injury.

Sometimes capacity is expected to be regained – eg after episodes of mental illness and delirium, in which case decisions should be postponed if possible. If not possible the Doctrine of Emergency applies and decisions are made in that person’s best interests.

Stage 2: Is the impairment or disturbance sufficient that this person lacks the capacity to make this particular decision at this point in time? There are four stages for consideration: Is the person able to understand information about this decision, the options that they have and the risks and benefits of each option? Are they able to retain the information related to the decision being made? Are they able to use that information and weigh up the pros and cons as part of the decision making process, without undue influence from others? Are they able to communicate that decision?

The outcome of this assessment is that either this person has capacity to make this decision now, or they do not. If they have capacity, the duty of care is to give them sufficient information to make their own decision. If they do not have capacity, the Doctrine of Best Interests comes into effect with all procedures to be followed, including when to refer to the Court of Protection, as defined in the MCA. If there is any doubt about the disorder of mind or brain, the possibility that mental capacity is fluctuating, or uncertainty about capacity assessment, then referral for psychiatric assessment can be helpful. q

www.yourexpertwitness.co.uk

47 47

Mental Health Act detainees suffer care discrepancies as numbers increase by nearly 10% [ PEOPLE DETAINED UNDER the

Mental Health Act are still experiencing wide variations in the standard of care they receive, according to a report from the Care Quality Commission published in December.

The report, Monitoring the Mental Health Act in 2014/15, looked at 1,292 visits carried out by the CQC between April 2014 and March 2015 to check how people detained under the Act are treated.

During the visits the CQC found examples where staff lacked sufficient knowledge of the Act's revised Code of Practice, which sets out how professionals should carry out their roles to make sure people detained under the Act get high quality care.

Says the commission: “We found that staff had received no training on the revised Code in just over 50% of the wards we visited in September and October 2015. We also found no evidence of patient involvement or in patients’ views being considered in a quarter of the 3,836 care plans that we examined during our visits to hospitals.

“This means that some people are having their liberty unnecessarily restricted and are not being properly involved in their care.”

Dr Paul Lelliott, deputy chief inspector of

48 48

www.yourexpertwitness.co.uk

hospitals and the lead for mental health, said: “Although we have seen some good and caring practice in mental health facilities, we remain concerned that services are not ensuring staff understand the Act or how they can ensure people are fully involved in decisions about their care. This is about more than a person simply having a right to know what is happening to them. Failure to engage a person fully in their treatment can hinder their recovery, and lead to potential breaches in meeting their human rights.”

The report came less than two months after statistics published by the Health and Social Care Information Centre (HSCIC) showed that detentions under the Mental Health Act had risen by 9.8% to 58,400 in 2014/15 compared to the previous year. That compares to rises of 5.5% during 2013/14 and 3.7% during 2012/13.

The HSCIC report looked at detentions under the Mental Health Act 1983, which defines how and when a person can be detained in hospital without consent for assessment and/or treatment.

It also showed that during the same period detentions in NHS hospitals increased by 4,000 (8.2%) from the year before, to reach

51,970 and in independent sector hospitals by 1,270 (24.6%) to 6,430. The instances where section 136 of the Act was used to make a short-term detention to a hospital as a ‘place of safety’ increased by 2,400 (14.1%) to 19,400, compared to the year before. q

Eye surgeons collective fall foul of [ competition law ONE UNEXPECTED AREA of law in which eye surgeons can find themselves is competition law. In August the Competition and Markets Authority (CMA) imposed a fine of £500,000 following an investigation into Consultant Eye Surgeons Partnership (CESP) Ltd. CESP Ltd, a membership organisation of private consultant ophthalmologists, had previously admitted breaching competition law and agreed to pay a fine. The fine was reduced to £382,500 in recognition of efficiencies for the CMA resulting from the streamlined administrative procedure following settlement and CESP Ltd’s continued co-operation, as well as the adoption by the company’s board of a comprehensive competition law compliance programme.

CESP Ltd was formed to represent the interests of 37 limited liability partnerships (LLPs) and their 200 consultant members based across the UK. It provides its members with a number of services, including access to negotiated contracts with private medical insurers. Each LLP has a representative on its board.

Among the competition law infringements admitted to during the period September 2008 to May 2015 were: • Recommending that its members refuse to accept lower fees offered by an insurer, and that they charge insured patients higher self-pay fees • Circulating among its members detailed price lists for ophthalmic procedures such as cataract surgery to be used with insurers. The collectively set prices did not pass on lower local costs such as cheaper hospital fees and made it harder for insurers and patients to obtain lower prices • Facilitating the sharing of consultants’ future pricing and business intentions such as whether to sign up to a private hospital group’s package price, which enabled members to align their responses.

CMA’s senior director of antitrust enforcement, Ann Pope, said at the time: “Today’s decision demonstrates the CMA’s willingness to pursue anticompetitive activity across a wide range of markets, including regulated and specialist sectors. Over the next few months we will work with businesses in this sector to help ensure they understand what they need to do to comply with competition law.

“We welcome CESP Ltd’s continued co-operation with the CMA’s

investigation and the adoption by CESP Ltd’s board of a comprehensive compliance programme, which has resulted in a further reduction in its fine.”

The case prompted the CMA to issue an open letter to all private medical practitioners on 3 December reminding them of their obligations under competition law. q

City solicitor joins sight charity board [ SOLICITOR THOMAS BJORN has been appointed to the board

of trustees at the charity Fight for Sight, which funds pioneering eye research to prevent sight loss and treat eye disease. The charity funds research into a number of different eye conditions including glaucoma, macular degeneration and diabetic retinopathy.

Thomas, a member of the corporate and commercial team at City of London firm Royds, specialises in life sciences and technology law. As one of 13 trustees, he will be involved in discussions on the charity’s ongoing strategy and areas of activity.

He said: “It is obviously a great privilege to join the board of Fight for Sight, which does such vital work funding research into sight loss.”

Fight for Sight’s chief executive Michele Acton added: “Thomas will be such an asset to Fight for Sight and we’re delighted that he is joining us in the fight for sight. I’m looking forward to working with him, along with the other members of the board.” q

Cataract surgery ‘rationing’ condemned by ophthalmologists [

THE ROYAL COLLEGE of Ophthalmologists has expressed concern over reports of continued ‘rationing’ of second eye cataract surgery by some Care Commissioning Groups in the NHS, stressing that a decision to perform the surgery should be based entirely on clinical need.

A report by the Scottish Health Technologies Group identified evidence from a randomised controlled trial demonstrating that second eye cataract surgery is cost-effective over an individual’s lifetime, and concluded that “...individual patient need should always be considered in prioritising access to second-eye cataract surgery.”

In February the Royal College of Ophthalmologists (RCOphth) published a NICE-approved Commissioning Guide: Cataract Surgery, which outlined recommendations regarding second eye cataract surgery.

Cataract surgery, says the RCOphth, is one of the most cost-efficient surgeries in the NHS, with over 300,000 routinely performed in England alone.

In a statement the RCOphth said: “We believe that any restriction to second eye surgery made through commissioning decisions will not produce the efficiencies or cost savings expected.

“RCOphth and our members can work directly with service providers and commissioning groups to review models of care if needed. We urge service providers and commissioning groups to ensure that patients are given the best and most appropriate care, based on clinical need.” q www.yourexpertwitness.co.uk

49 49

50 50

www.yourexpertwitness.co.uk

New cosmetic surgery certification welcomed by professional bodies [

ON 6 NOVEMBER the Royal College of Surgeons in England (RCS) unveiled a new certification scheme for cosmetic surgeons. It will enable surgeons working in the private sector to demonstrate they have the appropriate standards of training and experience to perform certain cosmetic surgical procedures, such as breast enlargements or tummy tucks. The new scheme will begin in the spring.

Currently, cosmetic surgery is not a defined surgical speciality.

The law allows any doctor – surgeon or otherwise – to perform cosmetic surgery. The new system of certification aims to address that issue and allow the public and employers to distinguish highly qualified, experienced individuals, from those who are working without adequate insurance or the necessary specialist training.

Mr Steve Cannon, chair of the Cosmetic Surgery Interspecialty Committee, which was set up to oversee the changes, said: “We are calling on all surgeons who perform cosmetic surgery to prepare for these very important changes. This new system of certification will raise standards of care for patients and enhance the reputation of the profession as a whole.

“It will make cosmetic surgery safer for patients, who for the first time will be able to identify a highly qualified, experienced surgeon to perform a procedure through a register of surgeons. It will also make it simpler for hospitals to check the qualifications, experience and training of the doctors who work there.”

Tim Goodacre, the BAPRAS (British Association of Plastic, Reconstructive and Aesthetic Surgeons) member of the RCS Council and a consultant plastic surgeon, said: “We fully welcome the surgeon certification launched today and hope it will start to address our concerns over inconsistent professional standards within cosmetic surgical practice. The measure, if rigorously enforced, will help protect

patients from unscrupulous and poorly trained practitioners.

“This is the first statutory action since Sir Bruce Keogh’s review of cosmetic surgery regulation. We encourage all appropriately qualified surgeons to apply for certification to help ensure the highest standards of patient safety and care.”

The new scheme was also warmly welcomed as ‘a significant step in the right direction’ by the British Association of Aesthetic Plastic Surgeons (BAAPS). According to its president Michael Cadier, the measures offer an improvement to a sector lacking regulation and often seen as the ‘Wild West’.

“The BAAPS see this as a positive move in the right direction, which is at long last recognising that surgeons who perform cosmetic surgery should have to prove at least a measure of training and demonstrate that they have been exposed to a minimum number of cases,” he said.

The BAAPS has previously offered a solution to the issue of ‘fly-infly-out’ surgeons, many of whom lack appropriate insurance cover – a matter which has been seen to cause serious problems for patients when complications arise.

Michael Cadier continued: “In particular, we welcome the need for surgeons to have a proper medical indemnity policy covering work in the UK. BAAPS expects that these proposals will rapidly become an expected minimum standard in the UK. Eventually, surgeons operating without certification should find that any mainstream hospital or clinic will not allow them to operate, as they represent a potential risk to patients.” q

Breast implant register nears reality [

THE CLINICAL AUDIT SUPPORT UNIT of the Health and Social Care Information Centre (HSCIC) has announced it is developing a mandatory national breast implant registry. The registry is being produced to support the implementation of Recommendation 21 of the Keogh Review of the Regulation of Cosmetic Interventions and will allow patients to be traced in the event of the recall of a particular type of implant.

Information captured by the registry will also be used to help identify potential issues and will be published by the HSCIC in an anonymised form in line with its statutory duties. Data capture is expected to begin in early 2016, with the registry currently due to go live on 1 April.

The register has been welcomed by the British Association of Plastic, Reconstructive and Aesthetic Surgeons (BAPRAS).

Its president Nigel Mercer, a consultant plastic surgeon, said: “We fully welcome the launch of a national breast implant registry which we strongly believe will help to ensure that patients receive safe, high quality care.

“BAPRAS has long championed the need for a compulsory register for breast implants to protect patients and has worked with a number of organisations to make this a reality.” q www.yourexpertwitness.co.uk

51 51

ARBITRATION & MEDIATION

AVIATION

BUILDING, PROPERTY & CONSTRUCTION

52 52

www.yourexpertwitness.co.uk

CCTV/VIDEO/IMAGE ANALYSIS

FORENSIC SERVICES

COMPUTER & MOBILE FORENSICS

EMPLOYMENT CONSULTANTS

GEOTECHNICAL CONSULTANTS

HEALTH & SAFETY

FIREARMS CONSULTANTS

www.yourexpertwitness.co.uk

53 53

SECURITY

VOICE/SOUND TRANSCRIPTION & ANALYSIS

MARINE SURVEYORS & CONSULTANTS

54 54

www.yourexpertwitness.co.uk

WOOD & TIMBER

MEDICO-LEGAL EXPERTS ACCIDENT & EMERGENCY

ANAESTHESIA

BREAST SURGERY

CLINICAL NEGLIGENCE

COLORECTAL SURGEONS

DENTAL & ORTHODONTIC EXPERTS

CARDIOLOGISTS

www.yourexpertwitness.co.uk

55 55

MEDICAL PHOTOGRAPHY

NEURODEVELOPMENTAL PAEDIATRICIANS GENERAL SURGEONS

OBSTETRICS & GYNAECOLOGY

GENETICS

HAND SURGEONS OCCUPATIONAL THERAPY

LIVER SURGEONS

ONCOLOGY LUNG TOXICOLOGY

56 56

www.yourexpertwitness.co.uk

OPHTHALMIC SURGEONS

ORAL & MAXILLOFACIAL SURGEONS

OSTEOPATHS

ORTHOPAEDIC SURGEONS

PATHOLOGY

PHARMACOLOGY & PSYCHOPHARMACOLOGY

PHYSICIANS

www.yourexpertwitness.co.uk

57 57

PHYSIOTHERAPISTS

PLASTIC SURGEONS

PODIATRIC CONSULTANTS

PSYCHIATRISTS

58 58

www.yourexpertwitness.co.uk

PSYCHOLOGISTS

SPEECH & LANGUAGE THERAPY

UROLOGISTS

WEB DESIGN RHEUMATOLOGISTS

www.yourexpertwitness.co.uk

59 59

60 60

www.yourexpertwitness.co.uk