Your Expert Witness Issue No. 39 (1YWR)

www.yourexpertwitness.co.uk

1

2

www.yourexpertwitness.co.uk

www.yourexpertwitness.co.uk

3

contents IN THIS ISSUE 7

9

Opening Statement

NEWS 9 Weather research helps Lloyd’s to model risks 9 ‘Snoopers Charter’ finally becomes law 10 CRPC to consider hot-tubbing report 10 Lawyers welcome Scottish move on child ‘criminals’ 11 The pictures have the story but that story needs an expert to tell it FINANCE 12 Early assessment makes for a successful injury claim 12 Tax advice standards updated 13 Make sure your accountant is both competent and appropriate BUILDING & PROPERTY 14 New Protocol comes into force 14 Après le déluge: get an expert search 15 Why going to school can kill you

11

WILLS, LEGACIES & CHARITABLE BEQUESTS 16 Research shows solicitors’ influence on legacy giving 17 Short breaks offer a normal life and boost self-confidence 18 Delivering a supporting role 18 Enhancing lives is the foundation of their work 19 Pass it on…giving is itself a gift 19 Long-established centre offers support to all 19 Help for those with failing sight 20 Surgical research benefits from legacy giving 20 If you Will, we will 21 Legacy giving continues to rise 21 Legacy expert predicts little to fear from preference service 21 Legacies – the gift of life for threatened primates

16

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

EXPERT CLASSIFIED 52 Expert Witness classified listings 54 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

1YWR

www.yourexpertwitness.co.uk

MEDICAL ISSUES 25 Medical Notes

31

NEWS 27 New mediation service for NHS will reduce need for litigation 27 Pharmacy body seeks Judicial Review of cuts 29 Benzodiazepines linked to hip fracture risk among dementia sufferers 29 AvMA encourages public to voice concern over extension of ‘safe space’ principle 31 PI lawyers’ ads still on display at A&E depts 31 Compensation scheme for birth injuries could replace litigation 31 Report into Panorama care homes published BRAIN INJURIES 33 Even mild brain injury may need effective treatment PSYCHIATRIC & PSYCHOLOGICAL ISSUES 34 Support for mental illness in pregnancy and childbirth crucial, say professionals 34 Psychologists call for continued improvement in stroke care 35 Historical child abuse: making a psychiatric assessment of the effects 36 Mental Health Act: CQC finds good practice, but soap story reflects failings

40

CULTURAL, RELIGIOUS & ETHNIC ISSUES 37 Cultural and religious issues in childcare: parents versus the state DENTAL NEGLIGENCE LITIGATION 39 Illegal whitening cases still dominate 39 Peri-implantitis: bone disease claims set to swell 39 Dentists have their own PI issues 40 Potential for conflict between counsel and witness PAIN 43 The challenges of fibromyalgia for medicolegal cases OBSTETRICS & GYNAECOLOGY 45 New guidance looks to reduce ectopic pregnancy deaths

49

VASCULAR SURGERY 46 Treating vascular malformations NOISE INDUCED HEARING LOSS 49 Hearing loss continues to attract claims OPHTHALMOLOGY 51 ‘Timely’ treatment urged for eye patients

www.yourexpertwitness.co.uk

5

6

www.yourexpertwitness.co.uk

Opening Statement [IT IS A TRUISM to state that the British are ‘obsessed with the weather’. In the past that has been attributed to

the fact that, as an island perched off the north west coast of Europe (remember Europe?), this country experiences all the available types of weather – rarely to an extreme and sometimes all in one day!

Recently, however, the undoubtedly changing climate has brought a somewhat more seasonal feel to the weather, certainly in the north of the country. The result has been flooding on a regular basis, in what seems to constitute an almost seasonal occurrence.

The subsequent difficulties in finding insurance in areas prone to flood events led the Cameron government to establish the Flood Re scheme in partnership with the insurance industry – a not-for-profit scheme to provide affordable insurance in flood prone areas.

Despite that, buying a home in an area prone to flooding can be like digging a money pit, and the risk isn’t always apparent. The Law Society urges conveyancers to advise clients on the wisdom of obtaining accurate flood information before committing.

• Global weather events can cost insurers dear, so accurate modelling of risk is essential for the likes of Lloyd’s. That’s why they partnered with the Met Office to discover if there was a link between such events in different parts of the world.

In an admirable act of philanthropy, they have made the methodology used in the research available to others.

• One of the ‘earth-system drivers’ used by the Met Office in its research was the notorious El Nino system.

It is just one of the causes of natural disasters that prompt altruistic individuals to leap into action and help.

Such worthy individuals are also to be found nearer to home, of course, and their causes less high-profile but nonetheless essential.

All need finance, and a major source of charitable finance remains bequests in wills. In this publication we have been championing the concept of legacy giving and highlighting the role solicitors can play in offering the possibility of such bequests to clients making wills. It appears we are having some success, as legacy gifts are once more on the up.

• An area where charities have to be vigilant is in making sure the money they receive comes from legitimate sources – and is used for legitimate purposes. The same applies where relatives are acting on behalf of a victim of an accident who is not in a position to pursue a claim themselves. Here, a forensic accountant can not only make sure the correct amount of compensation is claimed, but can also flag up potential misuse to a solicitor.

• Accounting experts can also perform a similar service in cases where a family business is to be attributed in a matrimonial case. If that accountant is familiar with the type of business involved then the guidance they can give is more accurate.

• As well as acting in the interests of clients to ensure fair play when it comes to financial dealings, forensic accountants are a safeguard against criminal activity such as fraud and money laundering. As alluded to in the last issue, such crimes can finance drug smuggling and international terrorism. That fight against terrorism has been the government’s rationale since Prime Minister May (then Home Secretary May) introduced the Legislative Powers Bill into Parliament earlier this year. That Bill is now an Act, and is set to trigger the biggest frenzy of information gathering we have ever seen.

One defence of the powers, as ever, is: ‘If you’ve done nothing wrong, you’ve nothing to fear’ – a mantra that echoes up and down prisons around the world, from Syria to Myanmar.

• Which brings us to Brexit. Actually, it doesn’t. This column has been produced without a single reference to Brexit, Donald Trump or Christmas – until now. So a Merry Christmas and Happy New Year to all our readers. Bah! Humbug! q

Ian Wild

Ian Wild, Director of Business Development Your Expert Witness

www.yourexpertwitness.co.uk

7

8

www.yourexpertwitness.co.uk

Weather research helps Lloyd’s to model risks [ LLOYD’S HAS PUBLISHED a new study

that supports the case that extreme weather events can be modelled as ‘independent’ by global reinsurers when assessing many of their key aggregate risks around the world.

The report, The Risk of Global Weather Teleconnections, was produced in association with the Met Office. It analyses the links between extreme weather events occurring in separate regions of the world that can take place over a range of timescales – from days to years – known as teleconnections.

The Met Office research found that the majority of perils are not significantly correlated, but identified nine noteworthy peril-to-peril teleconnections, most of which are negatively correlated. Lloyds’ modelling found that the correlations were not substantial enough to warrant changes to the amount of capital it holds to cover extreme weather claims.

Even when there is some correlation between weather patterns, it does not necessarily follow that there will be large insurance losses. Extreme weather events may still occur simultaneously even if there is no link between them. An assumption of independence for capital-holding purposes is therefore appropriate for the key risks the Lloyd’s market currently insures.

The head of exposure management and reinsurance at Lloyd’s, Trevor Maynard,

said: “The report’s findings go a long way to answering the challenge that capital for local risks should be held in their own jurisdictions.

Lloyd’s believes this approach reduces the capital efficiency of the (re)insurance market by overlooking the heart of insurance and the diversification benefits provided by writing different risks in different locations, and in doing so, needlessly increase costs to the ultimate detriment of policyholders. Insisting on the fragmentation of capital is not in the best interest of policyholders.”

The Met Office research analysed the impact of nine out of a pool of 22 ‘earthsystem drivers’, such as El Niño, on 16 priority region-perils that Lloyd’s selected as the most important. Lloyd’s then ran this information through its internal model to arrive at the report’s conclusion.

The methodology enables scenario modelling across global portfolios for appropriate region-perils and, in a groundbreaking move, has been made publicly available to allow debate and review. q

‘Snoopers Charter’ finally becomes law [THE CONTROVERSIAL Investigatory Powers Act finally

received Royal Assent on 29 November after being finalised in parliament earlier in the month.

Home Secretary Amber Rudd said: “This government is clear that, at a time of heightened security threat, it is essential our law enforcement, security and intelligence services have the powers they need to keep people safe.

“The internet presents new opportunities for terrorists and we must ensure we have the capabilities to confront this challenge.

But it is also right that these powers are subject to strict safeguards and rigorous oversight. The Investigatory Powers Act is world-leading legislation that provides unprecedented transparency and substantial privacy protection.”

The legislation has been criticised from many quarters, including lawyers who feared for legal professional privilege and secured a number of amendments. More widely, the scope of the Act to use so-called bulk powers to intercept huge amounts of communications has been the target of protests from civil liberties groups.

Chairman of the Bar, Chantal-Aimée Doerries QC, said: “Despite claims that the Investigatory Powers Act offers new protections for legally privileged material, sadly the Act falls significantly short of what we would consider sufficient to protect this important and

fundamental right which underpins the rule of law.

“We expect that draft Codes of Practice will be published in due course to give operational guidance to authorities. The Bar Council will scrutinise closely these draft codes, which ultimately must be approved by parliament.”

The Act has also been described as a blueprint for despots.

Bella Sankey, policy director at Liberty, said: “It’s a sad day for our democracy as this Bill – with its eye-wateringly intrusive powers and flimsy safeguards – becomes law.

“This new law is world-leading – but only as a beacon for despots everywhere. The campaign for a surveillance law fit for the digital age continues, and must now move to the courts.”

In its Out-Law.com blog, law firm Pinsent Masons said: “The Investigatory Powers Act has proved to be a controversial piece of legislation, attracting criticism from civil liberties campaigners.

A petition has been signed by more than 145,000 seeking its repeal. As the petition has more than 100,000 signatures the UK parliament must consider a debate on the issue.

“Beyond the debate, however, the future of the legislation remains unclear. A legal challenge brought before the EU’s highest court, the Court of Justice of the EU, could have a bearing on the Investigatory Powers Act.” q www.yourexpertwitness.co.uk

9

CRPC to consider hot-tubbing report [ THE Civil Procedure Rule Committee

(CRPC) is to consider whether the rules on expert witness evidence in court – as set down in Practice Direction 35 – should be amended in light of the report by the Civil Justice Council on so-called hot-tubbing.

The report, published in August, recommended changes, concluding that the practice, more formally known as concurrent evidence, improves the quality of evidence, saves court time and helps judges.

At a recent meeting of the CPRC the issue was considered. It was decided to convene a sub-committee, which could be widened to consider other issues relating to the delivery of expert evidence.

Commenting, Helen Rowlands of law firm Clyde & Co wrote: “Concurrent evidence will not be appropriate in all cases. There are many valid concerns, including: a more outspoken expert may unfairly dominate a discussion; extended debate may not in fact save court time; increased preparation

time by the judiciary may offset any trial length saving; and the process may lack the rigour of cross-examination. However, in an appropriate case there may be benefits for parties if the expert process can be streamlined and technical issues are better understood by the court.

“The general perception remains that hot-tubbing is not being used widely in practice, and there is perhaps little to suggest that this will change in the short term.” q

Lawyers welcome Scottish move on child ‘criminals’ [

THE LAW SOCIETY OF SCOTLAND has welcomed plans to raise the age of criminal responsibility following a statement in the Scottish Parliament by Minister for Childcare and Early Years Mark McDonald MSP on 1 December.

Ian Cruickshank, convener of the Law Society of Scotland’s criminal law committee, said: “Scotland’s age of criminal responsibility, at eight years of age, is the lowest in Europe and we are very pleased to see the Scottish Government intends to raise it to 12 years of age.”

The Minister said in his statement: “The case for change is clear and compelling. Having the lowest minimum age of criminal responsibility in Europe does not match with our progressive approach to youth justice and ambitions to give children the best start in life.

10 10

www.yourexpertwitness.co.uk

“Raising the age of criminal responsibility will mean people no longer face potentially damaging and life-altering consequences, such as a criminal record, for events that took place when they were a young child.”

Ian Cruickshank added: “The UN Committee on the Rights of the Child has said that setting the age of criminal responsibility below 12 is not ‘internationally acceptable’ and we have argued for several years that a child of eight is too young to be held criminally responsible.

“Raising the age will bring it in line with the existing age of criminal prosecution in Scotland, providing clarity in the law, and will ensure that children are not treated and then labelled as offenders because of things they did when they were under 12 years old.” q

The pictures have the story

but that story needs an expert to tell it

[

THERE HAS BEEN much coverage in the news in recent years of the use of CCTV footage to identify and, in some instances, convict suspects. Evidence derived from CCTV 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.

One company that specialises in the analysis and interpretation of both covert audio and CCTV footage is Audio Video Forensics.

The value of their work was most demonstrated in the fatal accident inquiry into the Glasgow bin lorry crash in 2014 that killed six people.

Audio Video Forensics were engaged by the Procurator Fiscal’s office to analyse multiple CCTV images from around the crash scene to determine the speed of the vehicle for the enquiry.

It was one of a series of instances where such analysis has been undertaken. It has been used to compare images to determine whether a vehicle (or object) caught on camera is in fact one and the same.

For example, in the Mirror ‘fake photo’ case AV 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 height analysis in a murder case for the defence in Liverpool in 2014.

The company’s founder, Iain McArthur, has an enviable background in high-end audio technology in both the music and film industries.

Indeed he was part of the team at industry leader AMS-Neve that developed the flagship DFC Digital Film Console – used to mix the sound on around 70% of the world’s blockbuster films. It won a coveted Scientific and Technical Award from the Academy of Motion Picture Arts and Sciences (a technical ‘Oscar’) in 1999.

The expertise AV Forensics is able to deploy is the result of long experience and training in the use of such technology. The analysis, clarification and transcription of sound recordings – for both prosecution and defence – also forms a core part of the company’s work. q www.yourexpertwitness.co.uk

11 11

Early assessment makes for a successful injury claim What happens when the relative of a victim asks you to act on that relative’s behalf to claim damages for serious life-threatening injuries? Forensic accountant DEREK WILLIAMSON, of Goddards Accountants, offers some thoughts on the answer to that question.

[

IDEALLY THE FAMILY should contact a solicitor as soon as possible after the injury. That is because many claimants do not know the systems and procedures to be followed.

Are there any statutory benefits they can claim? Are there any interviews or photos that need to be acquired? Should local authority social services be accessed and, what is the hospital doing?

Remember that the medical condition and quality of life may be improved by early intervention and you can help clients with that.

All too often we are asked by solicitors to put a value on a compensation claim weeks, or even days, before a court hearing which means the case does not get the benefit of a ‘cold’ review. In our experience, the sooner a forensic accountant is involved, the greater the potential claim.

On a recent case, we were only approached during the adjournment and at the request of the judge. Once we had completed our review we assessed that the claim for £50,000 in damages, made by the solicitors, was far too small. We expressed in detail our reasons for a revision of the claim and the claimant’s solicitors then revised the claim before the next hearing.

As a result the plaintiff received £250,000 in damages, together with all the costs. If the judge had not requested our involvement the plaintiff would have only received £50,000.

We have also noticed a reluctance among solicitors to report the other side for failing to disclose material evidence. Why? Surely that reflects on the whole profession.

We have also noticed that key evidence is often hidden among ‘rubbish evidence’. Indeed, when solicitors inform us of ‘unimportant dross’ that has been produced, we immediately suspect something has been hidden in full view. In over 60% of cases we find important evidence.

Consideration should be given to how the compensation is to be utilised. As we are deputies to the Court of Protection we are very cynical about members of the family managing the funds.

In our experience too many cases result in financial abuse by family members. During the case the solicitor should have gained an insight into the family, and the probability they will exploit the situation, and so should perhaps be steering all partners toward a ‘protective’ deputyship. q

Tax advice standards updated [

A GROUP OF leading UK accountancy and tax bodies have jointly published updated guidance on the standards expected of tax advisers and agents. The guidance has been endorsed by HMRC and sets out clear professional standards in relation to the facilitation and promotion of tax avoidance.

The bodies are: the Chartered Institute of Taxation, the Association of Taxation Technicians, the Association of Accounting Technicians, the Association of Chartered Certified Accountants, the Institute of Chartered Accountants in England and Wales, the Institute of Chartered Accountants of Scotland and the Society of Trust and Estate Practitioners.

The guidance, known as Professional Conduct in Relation to Taxation (PCRT), has been in existence for over 20 years and is regularly updated. It is based on five fundamental principles: integrity, objectivity, professional competence and due care, confidentiality and professional behaviour.

For this latest update, the professional bodies have strengthened the existing five fundamental principles by the addition of five new ‘Standards for Tax Planning’ that members must observe.

In a joint statement, the seven bodies said: “We believe these new Standards for Tax Planning achieve an appropriate balance – making clear to the small minority of tax professionals who continue to facilitate and promote tax avoidance schemes that this behaviour is not acceptable, while enabling the vast majority of advisers to continue undertaking responsible tax planning for their clients to help ensure that they pay the right amount of tax as intended by law.” q

12 12

www.yourexpertwitness.co.uk

Make sure your accountant is both competent and appropriate

By JONATHAN RUSSELL of ReesRussell LLP

[

WE ALL HAVE our ‘little black book’ or equivalent when it comes to other professionals to help us, but it’s often necessary to think beyond that to what might be best for the client.

When it comes to using an accounting expert in matrimonial cases involving a business, there are three questions which are asked more often than any other.

• How much are the shares in the • company worth?

• What is a reliable amount of income the • company can generate?

• How much capital can be withdrawn • from the company?

Usually the reason that you might want an expert accountant is to give guidance on those matters. In most cases, the company or business is a small, privately-owned business and the questions are being asked about a director and shareholder. There might then be secondary questions about tax implications, but they are secondary.

It is a given that any expert appointed, whether party or single joint, will meet the basic qualities of being suitably qualified, independent and fully understanding of their duties. But is the accountant who might be your initial choice someone who understands that sort of business?

If you were having an extension built on your house you would be more likely to go to a local builder than a big national housebuilder. Not because the national housebuilder can’t do it, but because they would not be appropriate.

When it comes to small and family businesses you should be looking for an accountant who deals with that sort of business on a regular basis.

An example of such accountancy practices would be those who are members of the UK200Group, which not only represents over 150,000 small businesses but also produces the Small and Medium Enterprises Valuation Index. q

• Jonathan Russell is a chartered accountant, chartered arbitrator and accredited mediator.

He is managing partner of ReesRussell in Witney, Oxfordshire, and Russell Phillips in Gerrards Cross, Buckinghamshire.

He has been a member of the Academy of Experts for over 20 years and is currently chair of the UK200Group’s Forensic and Dispute Resolution Panel.

www.yourexpertwitness.co.uk

13 13

New Protocol comes into force Après le déluge: [

A NEW PRE-ACTION Protocol for Construction and Engineering Disputes came into force on 9 November. It was prepared jointly by TECBAR and TeCSA – which represent barristers and solicitors respectively in the Technology and Construction Court – and is intended is to simplify the pre-action process and to reduce the costs of complying with it.

The new document was introduced at a launch at the Rolls Building on 2 November and it is now available to download on both the TECBAR and TeCSA websites. The last Pre-Action Protocol for Construction and Engineering Disputes came into force in October 2000, and was amended in 2007.

According to Louise Robling of specialist law firm Bevan Britten: “The original Protocol came into force in October 2000 and in more recent years has been criticised for the level of information required, leading to a disproportionate level of costs being incurred, particularly in small value claims. Secondary disputes could develop over whether parties had adequately complied with the Protocol or not.”

According to TeCSA, as well as making significant amendments to the former Protocol, including as to when it can be disapplied altogether, the new Pre-Action Protocol for Construction and Engineering Disputes introduces a ‘Protocol Referee Procedure’, whereby parties who have agreed to sign up to that procedure may seek directions from a protocol referee to assist them with participating in and complying with the Protocol and/or to assist resolution of any noncompliance with it.

Commenting on the innovation, Louise Robling said: “The new Protocol Referee Procedure is voluntary and so it remains to be seen whether parties will adopt it. Given the fee involved, and the general changes within the Protocol aimed at simplify the process and reducing costs, it is likely that it will only apply in the most complex and high value cases.” q

14 14

www.yourexpertwitness.co.uk

get an expert search [

THE ISSUE OF FLOODING has once more surged to the front of people’s minds, with memories in all areas of the country stirred by the rampage of storm Angus.

According to Thames Water: “There are many common misconceptions around flood risk. When we think of flooding, there’s a tendency to picture a river that’s burst its banks. However, that’s not always the full story. Did you know the Environment Agency estimates that more properties in England are at risk from surface water flooding than flooding from rivers and the sea?”

The Law Society draws attention to the dangers, stating: “It may not be obvious when a property is at risk from flooding. Properties do not need to be close to a river or the sea or on low-lying ground to be exposed to flood risk. Surface water, groundwater and overflowing sewers are increasingly common causes of flooding.”

The Practice Note on the issue, however, accepts that specialist advice is needed.

“Solicitors are not qualified to give advice on flood risk or interpret technical flood reports,” the document states. “However, this note aims to provide you with information to help your clients investigate the terms on which buildings insurance cover, including flood risk, is available, prior to their entering into contractual commitments.”

The Flood Practice Note was updated in February in anticipation of the introduction in April of

Why going to school can kill you [COUNCILS IN ENGLAND have paid out at least

Flood Re – the not-for-profit insurance scheme to help people in flood-prone areas obtain affordable insurance – plus recent insurance changes to the Council of Mortgage Lenders handbook.

Steve Johnson is account director of Landmark Information Group, whose products include flood risk searches.

He said: “Given the huge negative implications for clients, it is essential that solicitors and conveyancers follow the Law Society’s guidance by addressing flood risk in accordance with the Flood Practice Note. That way both the homebuyer and lender are fully informed before the purchase completes and the conveyancer remains robust in their due diligence.” q

£10m in compensation to people who developed illnesses because of asbestos in school buildings, according to figures compiled by the BBC. The figures show that in the past decade 32 councils have settled claims from former teachers, school staff or pupils.

The BBC obtained figures from 135 councils in England under an FIA request. They showed there are at least 12,600 council-run schools where asbestos is known to be present. However, the number of actual schools that contain asbestos is likely to be higher as academies are not included in the figures.

Chillingly, of the councils that responded, 13 said they held no information about which schools in their area contained the hazardous material – despite the requirements of the Duty to Manage in the Control of Asbestos Regulations 2012 – and a further 10 councils refused to disclose information about the number of asbestos cases they had settled.

“This is a ticking time bomb because very few teachers and parents know that there is asbestos in schools. The very least we should do is make sure that this information is available to them,” Rachel Reeves MP, chair of the Asbestos in Schools group, told the BBC. The presence of asbestos in any building built before 2000 is a distinct likelihood, but in schools the risk is particularly high. Sadly, hardly a week passes without a story in the local press somewhere reporting the passing of a former school worker from the asbestos-related cancer mesothelioma.

The timebomb that is still ticking, however, is among the population of schoolchildren from the period between the 1950s and 2000. With mesothelioma taking up to 40 years to develop, the possibility of a wave of victims as the population ages is very real. q

www.yourexpertwitness.co.uk

15 15

The leaving of legacies in wills continues to provide a crucial element in the funding of charities across the board. The work such gifts enable covers a bewildering range of fields – from international aid to local animal charities. Here we look at the way in which a solicitor can help bring information about legacies to people writing their will. We also report on the latest figures for legacies, the likely impact of the new Fundraising Preference Service and a novel approach to spreading the message.

Research shows solicitors’ influence on legacy giving [IN OCTOBER NEW RESEARCH was presented at the Law Society that provides a valuable insight into how solicitors can help their clients to use their wills to support charities.

Commissioned by legacy giving umbrella group Remember A Charity and conducted by the Behavioural Insights Team – or ‘Nudge Unit’ as they have become known – and the University of Bristol, the two-year

16 16

www.yourexpertwitness.co.uk

study examined the way solicitors raise the issue of clients leaving money to charity. It highlights the impact of different approaches and how these produce different results in charitable giving.

According to the charity, it is the first of its kind to explore the most appropriate and effective ways for solicitors to make their clients aware of the option of donating through their will in a face-to-face setting. It

was based on randomised trials involving eight firms of solicitors and over 2,600 client interactions across the UK. “Writing a will is an important step in ensuring that the people and causes we have cared about will be properly looked after when we pass away,” said Law Society president Robert Bourns. “Solicitors have a vital role to play in this process, using our legal knowledge and experience to give our clients the reassurance that their wishes will be properly carried out. This research makes an important contribution in helping solicitors think about how we give our clients the best possible support and service in the will-writing process.”

The research found that solicitors felt able to raise the issue of leaving money to charity in discussions with their clients comfortably and appropriately. Moreover, the study found that people’s likelihood of including a charity in their will is affected by the language that legal professionals use, concluding that how solicitors raise the charitable option can play a major role in legacy giving. The gap between the public’s intention to give through their will and the likelihood of them doing so can be reduced through the will-writing process.

Michael Sanders, chief scientist and head of research, evaluation and social action at the Behavioural Insights Team, said: “We already know that mentioning legacy giving as part of the will-writing process can have a significant impact on giving levels; but the evidence from these new trials indicates that specific language used in conversations can make a real difference to the way that people respond in a face to face setting.

“Crucially, we also found that solicitors and customers are both comfortable with the concept of giving to charities being presented as part of the will-writing process.”

An online survey of the public on their views about solicitors raising the issue of leaving money to charity showed that 69% of people indicated that they would be happy for their solicitor to raise the issue, and 46% thought a solicitor had 'a duty' to raise the option of such a legacy giving when discussing a will.

Normalising charitable legacies, by communicating that it is something that others do, was the approach most likely to encourage clients to leave a gift to charity in their will. However, the impact of such ‘social norm’ messaging varied according to clients’ circumstances.

It was most effective for clients that were writing a will for the first time, with a 40% uplift in the number of first-time testators choosing to include a charity compared to a control group. But this approach may be counter-effective for those who are not writing their first will, discouraging them from doing so.

Addressing legacy gifts as an opportunity to support charities that participants’ families care about or have benefited from increased the likelihood of participants without children donating and may increase the likelihood of people with children donating.

Posthumous benefit framing – where solicitors focused on the good work that charities could do with the money after the person has gone – was not found to be as effective as other wording. Indeed, that approach may reduce the likelihood of giving when compared to emotional framing or social norm messaging within the will-writing setting.

Rob Cope, director of Remember A Charity, commented: “Legacy giving has become increasingly important to UK charities in recent years, generating around £2.5bn for good causes annually, and its impact on charitable services is immense. But, despite being a highly philanthropic nation, a relatively small proportion of people leave a charitable bequest in their will.

“Many simply don't realise that legacy giving is an option for them; that they can provide for family and friends and still have the opportunity of including a charity if they wish to do so. The role of legal professionals is crucial in making clients aware of all the opportunities they might want to consider when writing a will.”

He added: “While there has been a steady increase in the number of people choosing to include a charity in their will in recent years, we are far from a place where legacy giving is the norm.

“With this report, we hope to help solicitors introduce the issue of charitable gifts in a way that is relevant, comfortable and a positive part of the will-writing experience for them and their clients.”

Robert Bourns concluded: “We know that there's a big gap between the 35% of people who say they want to leave a charitable legacy in their will and the around 6% of people who actually do. By improving our understanding of how to raise this important question, solicitors will be better equipped to assist clients in drafting a will that properly reflects their wishes.” q

Short breaks offer a normal life and boost self-confidence

“

The Youth Cancer Trust gives amazing support, love and dedication to hundreds of young adults affected by cancer, without them I truly don't think I would have become the person I am today. They have given me back my confidence and made me realise that I can live a normal life, have fun and have the most amazing experiences like other young people who haven’t had cancer.

”

[THAT QUOTE FROM Kirsty sums up the value of the work done

by the Youth Cancer Trust. The organisation provides free therapeutic activity holidays for teenagers and young adults – those aged 14-30 – from the UK and Ireland who are suffering from cancer.

The residential breaks are designed to provide a safe space for young people with cancer to be with others of a similar age going through a similar experience, thus reducing the sense of loneliness that often accompanies a cancer diagnosis during their formative years. The activities are designed to help rebuild confidence and boost self-esteem, and include horse riding, sailing and water sports.

The charity receives no government funding and relies entirely on donations, such as those from legacies, to help support the needs of young cancer patients like Kirsty. q • For more information visit www.youthcancertrust.org. www.yourexpertwitness.co.uk

17 17

Delivering a supporting role [THE ACTORS’ BENEVOLENT FUND was established in 1882 with

the aim of helping professional actors and stage managers who are unable to work through injury, ill health or age. The acting profession has grown enormously in that time – with the need for help increasing in proportion.

The Fund provides support to some 230 beneficiaries of whom 190 receive regular financial help. It also provides assistance with general household expenses, the cost of replacing household equipment, mobility aids, physiotherapy, osteopathy, a shortfall on nursing home fees and holiday costs. Additionally it advises on entitlement to state benefits and on debt management.

During the year a number of beneficiaries are visited by the Fund's welfare adviser or a council member. The Fund aims to ensure that as many of them as possible, some of whom have been beneficiaries for a long time, have personal direct contact with a Fund representative.

The Fund's image may be that it only assists the elderly, however the reality is different. Although reflecting a national ageing trend with around two thirds of beneficiaries over 60, the rest are much younger with the youngest being in their early 20s. Illness or accidents can strike at any age, with a propensity of physical injuries afflicting the younger beneficiaries.

With no state funding, the Fund relies heavily on donations, legacies and investment to sustain the income required to support its beneficiaries. It remains as relevant today as ever and needs all the support it can get to help those for whom the show does not go on.

• For further information visit www.actorsbenevolentfund.co.uk.

Enhancing lives is the foundation of their work

[INDEPENDENCE AND FREEDOM of choice for people with

learning disabilities are fine ideals, but they can only become a reality with the right level of support – both financial and personal.

That is where the Camphill Foundation comes in, funding an everchanging variety of projects which enhance and enrich the lives of vulnerable people.

The foundation provides financial support which enables new initiatives to start and helps to create or improve facilities and vital opportunities for creative and fulfilling work. It often provides that much-needed extra bit of help for enhancing quality of life in areas regular funding fails to reach.

True quality of life means combining individual choice and fulfilment with social belonging and responsibility. That’s what the Camphill Foundation aims to promote.

For further information on leaving a legacy to enable that work to continue visit www.camphillfoundation.net. q

18 18

www.yourexpertwitness.co.uk

Pass it on…giving is itself a gift [

PROMOTING LEGACY GIVING by raising awareness of the power of passing things on is the function of the ‘knowledge for knowledge’ project run by Remember A Charity. In its latest endeavour a London taxi offered free cab rides in exchange for personal words of wisdom from the passenger as ‘currency’.

In a scenario where the taxi drivers’ famed London ‘Knowledge’ was bartered for knowledge that has been passed down across generations, Remember A Charity aimed to increase understanding of the importance of passing things of value on in life.

Its director Rob Cope explained, “We wanted to remind people about the wonderful gift of giving. We hope our ‘pay-it-forward’ taxi will encourage others to reflect what else they might pass on, including a gift to their favourite charities in their will.”

Wisdom shared by people who took part in the knowledge for knowledge project included: ‘Everything works out well in the end; and if it hasn’t worked out yet then it’s not the end’, ‘Work hard now and it’ll pay off later’ and ‘Enjoy every day; it might be your last’.

Taxi driver Grant Vickers – who was the knowledge ‘gatekeeper’ and sharer commented: “Chatting with passengers is part of the nature of the job and you often learn some strange things from those who travel with you; but this week has been really thought-provoking about things that matter in life. People have really engaged on the whole leaving-agift-for-others idea and it’s a topic of conversation I might well carry on after this week – although probably not offering rides for free!”

Earlier this year, Remember A Charity researched the UK’s most popular words of wisdom that people pass on in life, revealing a top three of: ‘Make the most of every day’, ‘Age is only a number’ and ‘Happiness takes us places that money never will’.

Rob Cope concludes: “We hope the film of the project we’ve pulled together gets people thinking and visiting our website to find out how every gift in a will, however small, can really make a difference. This is a campaign with a really important end goal as without a flow of these donations many charities just would simply not exist.” q

Long-established centre offers support to all [

ON 30 NOVEMBER the Ellis Centre in Stoke-on-Trent celebrated the 80th anniversary of its opening as a purpose-built facility for the dDeaf community.

Now known as dDeaflinks Staffordshire, the centre offers support to hard of hearing, deafened and profoundly deaf people via their preferred communication method. dDeaflinks receives no statutory funding and relies on charitable donations and legacy giving to continue its work.

Said a spokesperson: “These gifts can make a long-term difference to the future of our charity and the services we plan to deliver for future generations of deaf people in Stoke-on-Trent and Staffordshire.” q

Failing sight brings with it so many problems

[DO YOU HAVE a family member, friend or neighbour whose

sight is going? Reading, recognising friends, living skills are all affected when you lose your sight – and it’s much harder if you live alone.

National Federation of the Blind of the UK (NFBUK) keeps its members in regular contact with information, help and updates on the organisation’s campaigning work. The charity also issues bi-monthly news magazines in audio or electronically, which members can access to hear from other blind and partially sighted friends across the country. q • For further information contact NFBUK on 01924 291313, email admin@nfbuk.org or vist www.nfbuk.org. www.yourexpertwitness.co.uk

19 19

Surgical research benefits from legacy giving

[THE ROYAL COLLEGE OF SURGEONS OF ENGLAND (RCS) is

a registered charity and is internationally recognised as one of the world’s leading professional bodies for surgery – promoting surgical research, education and training throughout the UK. They are not part of the NHS and for over 200 years have safeguarded standards in clinical practice.

There are many reasons you might find yourself under the care of a surgeon and the work of the RCS is not limited to specific illnesses or specialties. Rather, through surgical research and education it supports better care for all ages – from minor day surgery to life-saving emergency trauma.

Although the medical profession and medical researchers continue to strive for the cure for many diseases and cancers, in many cases surgery remains the most effective treatment; and the procedure has the highest impact on cancer survival.

The RCS relies heavily on donations and legacies to develop and maintain its varied programme of clinical research, surgical education and heritage conservation. Operations are now safer, less invasive and more effective, with better outcomes. The range of procedures that can be performed safely and routinely has expanded dramatically. That would not have been possible without high-quality research.

Surgery saves lives – and a gift will help those who put theirs in the hands of a surgeon. q

If you Will, we will [LEGACIES MEAN SO much to the team at Last Chance

Animal Rescue. These wonderful gifts have helped them to rescue, rehabilitate and re-home so many abandoned, abused and unwanted dogs, puppies, cats, kittens, rabbits and guinea pigs who otherwise would have had no future.

The charity understand the wishes of its kind benefactors who have considered them in their Wills. A spokesperson said: “We know they want their generous gift to us to be used directly to save lives, provide the very best of care and to find loving homes.

“Legacies really do provide the gift of life and Last Chance Animal Rescue can now, after much planning and prudent use of funds, offer our life saving services to so many more needy pets. We are delighted to announce we now have a second rescue and re-homing centre in Kent, giving hope and a true A new friend for Alan last chance to so many.

“Sadly we cannot thank those who have enabled this wonderful achievement but are extremely grateful to all those who are currently considering helping us now and in the future to continue our work.” q

20 20

www.yourexpertwitness.co.uk

Legacy giving continues to rise [TOTAL LEGACY INCOME for the 12

months to September is up by 8.5%, compared to the same period last year. That is according to the latest quarterly bulletin from analysts Legacy Foresight.

It reveals that the 78 members of the Legacy Monitor consortium received £1.4bn in legacy income and 51,600 legacy notifications.

According to the bulletin, the number of residual notifications has seen a ‘steady upward trend’ over the past four years, with an increase from 18,000 to more than 20,000 per annum.

As a result, residuals’ share of notifications has risen from 38% in 2014 to 40%. Legacy Foresight believe that is a positive trend that they will monitor over the coming months.

This quarter saw a dip in average residual values, however – down from £60,300 in June to £58,500. Legacy Foresight believes this is due to an adjustment from June’s record high rather than a fundamental weakening of residual values post referendum. For the third quarter running, pecuniary values have risen, reaching a new high of £4,120.

Meg Abdy, project management and social research director of Legacy Foresight, said: “Even against an uncertain economic backdrop the increase in legacy notifications and recent strong growth in values bodes well for the coming year.”

Legacy Monitor is a research programme set up to analyse, benchmark and debate trends in the legacy market. Established in 2008, it incorporates an annual review of trends in the legacy market and a quarterly benchmarking service.

This year the programme is benchmarking 78 of the UK’s leading charities, who together account for 52% of the legacy market. All the charities in the consortium have agreed to share legacy performance data with the sector, allowing information and insight to be gained. q

Legacy expert predicts little to fear from preference service [

IN NOVEMBER Chris Farmelo, director of Legacy Foresight, offered his thoughts on how the new Fundraising Preference Service (FPS) would impact on charitable income of all kinds – including legacies. The article was posted on the Legacy Foresight website.

Together with the charity sector of a whole, he issued a metaphorical sigh of relief that the feared ‘opt-in’ model for the service appears to have been discarded in favour of an ‘opt-out’ version.

Chris explained: “People who choose to sign up to the FPS will have the ability to press a ‘large red button’ to stop all fundraising communications, or a ‘small red button’ which allows individuals to specify the charities they don’t wish to hear from, ensuring that that they only get the fundraising communications they want and need. Importantly, charities with existing relationships can contact a donor to clarify if registration is intended to cover them.

“Registration will last for a period of two years and the regulations will apply only to fundraising communications, from organisations spending over £100,000 per year on fundraising.” Using a long-term forecasting model with the ‘opt-out’ version, he concluded that the impact on legacy incomes over the next 20 years would be pretty minimal.” q

Legacies – the gift of life for threatened primates [THE RESCUE AND provision of sanctuary for monkeys who have

suffered abuse and neglect is the mission of animal charity Wild Futures.

They are also dedicated to protecting primates and their habitats worldwide.

Flora and fauna around the world are endangered by climate change, habitat destruction and the bush-meat and pet trades. For some species it is too late and the future of what remains lies in our hands, so the gift of a legacy to Wild Futures is ‘…the gift of life and a future for primates and our wonderful planet’.

The charity’s holistic approach makes it unique in providing sanctuary to rescued monkeys, supporting projects overseas, campaigning for primate welfare, educating people to protect primates worldwide and promoting a sustainability and ethical ethos. International recognition of that is demonstrated by the fact that its safe haven for monkeys – The Monkey

Sanctuary in Cornwall – is the only sanctuary in the whole of Europe to be accredited by the Global Federation of Animal Sanctuaries.

For over 50 years they have rescued monkeys suffering with psychological trauma, diabetes and metabolic bone disease. With spacious, natural enclosures, companionship of their own kind and specialist care, the monkeys learn to enjoy life again. Meanwhile, Wild Futures strives to end the cruel trade in the hope that one day their work will be done.

They receive no government funding, so the generosity of those that remember Wild Futures is essential to enable them to continue their work. A legacy can be the gift of a life worth living and a wild and safe future for all. q • Call 01503 262532, email giving@wildfutures.org or visit the webiste at www.wildfutures.org.

www.yourexpertwitness.co.uk

21 21

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 Jeffrey AC Meek LLP Translations and Interpreting for the Legal Profession since 1997.

Specialists in Personal Injury and Clinical Negligence.

Forensic Accounting Reports: • Personal injury • Valuations • Commercial disputes • Divorce • Fraud • Proceeds of crime • Negligence

www.abc-translations.co.uk

www.jeffreyacmeek.co.uk

Dr Asef Zafar MBBS MRCGP

Dr Joshua Adedokun

GP and experienced Expert Witness specialising in reports for clinical negligence, personal injury and accident claims

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

www.uk-doctors.org.uk

www.expertpainreports.co.uk

British Weather Services

Mr Kim Hakin FRCS FRCOphth

• Legal weather reports • Weather data • Site investigations • Expert witness in court • Call: 07860 912216

Consultant Ophthalmic Surgeon and Expert Witness on ophthalmological matters

www.britishweatherservices.co.uk

www.kimhakin.com

Professor Charles Claoué

Mr Marcus Ornstein

Consultant Ophthalmic Surgeon • trauma • cataract • corneal and external disease • refracture surgery

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

www.dbcg.co.uk

www.marcusornstein.co.uk

Mr Chris Makin

Mr Mark Duxbury

• Chartered Accountant • Accredited Civil Mediator • Accredited Expert Determiner

Consultant Surgeon – medicolegal work relating to general surgery and specialist liver and pancreatic surgery

www.chrismakin.co.uk

www.markduxbury.info

DentoLegal

MD5 Ltd

Specialising in the preparation of evidence-based Breach of Duty & Causation and Condition & Prognosis Dental Reports

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

www.dentolegal.com

www.md5.uk.com

Expert in Mind

Medical Illustration UK Ltd

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

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

www.expertinmind.co.uk

www.migroup.co.uk

FHDI - Kathryn Thorndycraft

Mr. Michael Hodge

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

Maxillofacial and Oral Surgeon.

• Personal Injury • Criminal Cases • Clinical Negligence

www.fhdi.co.uk

www.consultantoralandmaxillofacialsurgeon.co.uk

22 22

www.yourexpertwitness.co.uk

Mr Michael Thompson

Mr Simon Bramhall

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

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

www.expertcolorectalsurgeon.co.uk

www.simonbramhallhpbsurgeon.co.uk

Munro Consulting

Stockport Psychology Services

Expert Witness services relating to the design, construction and maintenance of highways

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

www.munro-consultants.co.uk

www.sps.uk.net

Professor Roger James

Dr Thomas C M Carnwath

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

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

www.independenthealthconsultant.co.uk

www.psycholegal.org

Sector Forensics Ltd

Mr William Stuart Hislop

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

Consultant Oral and Maxillofacial / Head and Neck Surgeon.

Specialist in ablative and reconstructive surgery.

www.sectorforensics.co.uk

www.wshislop.co.uk

www.yourexpertwitness.co.uk

23 23

24 24

www.yourexpertwitness.co.uk

MEDICAL NOTES [

MENTAL HEALTH became something of a cause celebre in the closing stages of the Cameron administration.

There was a pledge to increase resources in the NHS to recognise mental illness as being on a par with physical illness – removing the stigma and treating the diseases as exactly that: diseases.

In the ensuing months there has been ample time to make good that pledge, although cynics would argue that the fine words were nothing more than showboating in front of an audience and nothing would change. After all, how do you improve services without increasing resources?

• If the success of a pledge could be measured by the number of ‘initiatives’ it spawned, then mental health in this country would be at a peak. That, however, is not the case and measuring success is a more mundane task.

In terms of improvements in the care of people detained under the Mental Health Act that task falls to the Care Quality Commission (CQC).

The CQC had the opportunity to measure how that part of mental health care is shaping up in November, when it published its annual review of how the Act is being applied in England and Wales. As could be anticipated, there were things to be admired and things that could be improved. In particular, people with mental illness and their families are often pushed to breaking point when the patient is transferred many miles from home for treatment.

The practice has rightly been condemned.

• Another area of concern in the field of mental health is that of new mothers. Around one in five women develop some form of mental illness either during pregnancy or within a year of giving birth, so addressing the problem is of crucial importance. With clinical negligence cases relating to maternity and perinatal care taking up a sizeable slice of the NHS budget, it is in everyone’s interest to make sure the mental health of pregnant women and new mothers is a priority.

• When things do go wrong in childbirth, the consequences for the affected child can be lifelong and debilitating.

Hitherto the path to obtaining redress and the necessary support has been tortuous and exhausting. Very often it involves litigation, with all the time lag and frustration that involves. A government proposal to replace that drawnout process with a ‘rapid resolution and redress’ scheme that takes cases out of the litigation process would seem to be a step forward. PI lawyers are wary of the motive and counsel caution.

• Closely allied to the provision of mental health services – and another of the government’s high-profile campaigns – is treating the growing scourge of dementia. Watching a loved one deteriorate to the extent they can no longer look after themselves (and even to the point where they no longer recognise you) is a heartbreaking process for any relative. If that process involves having to hand the relative over to social care, then it is imperative that the people looking after the patient are not only competent to deliver the necessary care, but also committed to doing so in a professional and caring way.

When that doesn’t happen, then all hell can and should break loose. The individuals perpetrating the abuses uncovered by the BBC’s Panorama programme betray the many dedicated members of staff who work their fingers to the bone to provide often exemplary standards of care.

• Sometimes, health professionals themselves fall victim to workplace injuries and illness. In the case of dentists the issue in the news is noise-induced hearing loss, caused by the noisy equipment they use. Drills are the obvious culprit, but there are others. All odontophobics found smirking will be banished to the waiting room! q

www.yourexpertwitness.co.uk

25 25

26 26

www.yourexpertwitness.co.uk

New mediation service for NHS will reduce need for litigation [THE NHS LITIGATION AUTHORITY has

launched a new mediation service following a public tender. The service follows a successful pilot and has been designed to support injured claimants, their families and healthcare staff in working together towards resolution without the need to go to court.

The tender process enabled the NHS LA to use its buying power to procure the highest quality mediation services at the lowest possible cost. The contracts have been awarded to the Centre for Effective Dispute Resolution (CEDR), Trust Mediation and Costs Alternative Dispute Resolution (CADR). The contracts are for an initial period of two years, commencing on 5 December.

The authority’s chief executive Helen Vernon commented: “Our plans to launch a mediation service have been well received by all those involved in the resolution of incidents resulting in harm. I am delighted that we have awarded contracts to CEDR, Trust Mediation and CADR, which will increase our capacity and

capability to provide high-quality mediation services on behalf of the NHS. “Mediation is an excellent forum for dispute resolution and provides injured patients and their families with an opportunity for faceto-face explanations and apologies when things go wrong and reduces the need for unnecessary litigation. We have used mediation to good effect throughout our 20 year history, including in high-profile cases and group actions.

“We will closely monitor the service to ensure we see the positive benefits we believe can result from greater uptake of this non-adversarial approach to dispute resolution.”

Tim Wallis, chairman of Trust Mediation, declared: “We are delighted our expertise as a leading specialist panel of independent personal injury and clinical negligence mediators has been recognised by the NHS LA in the award of this contract. We look forward to working with claimants, the NHS

LA and the lawyers involved to continue our record of delivering early settlement of difficult disputes.”

Graham Massie, director of CEDR, said: “The mediation of disputes with the NHS will make a positive difference for all concerned, especially patients and the families of patients, sparing them the expense and stress of going to trial when looking for the resolution of a claim. Having worked with the NHS in various ways over the past two decades, CEDR is delighted to see the NHS LA now confirming its use of mediation and to be one of the organisations selected by them to help find settlements where there are disputes.”

Hannah Rawlins, CADR registrar, added: “CADR is absolutely delighted to be appointed to the NHS Litigation Authority’s mediation panel. We look forward to assisting in the streamlining of legal costs recovery, facilitating efficiency and promoting the swift and fair resolution of claims at every opportunity for all parties involved in the process.” q

Pharmacy body seeks Judicial Review of cuts [

THE Pharmaceutical Services Negotiating Committee (PSNC) is seeking a Judicial Review of the Secretary of State’s decision to implement cuts to community pharmacy funding and other changes.

In a statement issued on 1 December the committee said: “PSNC has sought permission from the High Court to apply for the Judicial Review on the grounds that it believes the Secretary of State failed to carry out a lawful consultation on the proposals for community pharmacy.”

An ‘expedited hearing’ has been requested so that, if permission to seek Judicial Review is granted, the hearing can take place as soon as practicable.

The statement continued: “PSNC accepts the need for the NHS to achieve efficiencies within the community pharmacy sector and is not challenging this principle, but it does not believe that the consultation process on the proposals that are now being implemented complied with the requirements of a lawful consultation.”

PSNC believes that the Department of Health has used poor data, which it did not disclose, as a basis for its decision, rather than updating existing high-quality data. The application raises a number of concerns about the consultation, including: • The department’s failure to disclose the fact that it had carried out an analysis of pharmacies’ profitability based on Companies House data as part of its impact assessment.

• The delay in providing this analysis to PSNC after the publication of the impact assessment.

• The validity of the department’s analysis, including the sample size and the use of accounting returns rather than economic returns, as the basis for the assessment of pharmacies’

economic viability and how they might be affected by the changes.

• The department’s failure to analyse what the levels of pharmacy closures may be: PSNC has been taking legal and other expert advice since December last year and in recent weeks has been working with other pharmacy organisations to explore legal options. The National Pharmacy Association is named as an interested party in PSNC’s application.

PSNC chief executive Sue Sharpe said: “PSNC’s role is to represent community pharmacy contractors. We have always sought to do this by working positively with the NHS to ensure that community pharmacies can do their best to meet the needs of the NHS, patients and local communities, and that the NHS recognises and acknowledges the value they provide.

“PSNC has spent the past 12 months trying to work constructively with the Department of Health and NHS England to enable community pharmacy to help the NHS to meet the increasing challenges that it faces.

We have sought to avoid taking legal action and very much regret that the process the NHS has followed has made this impossible.”

The cuts were announced by pharmacy minister David Mowat in October. Community pharmacy funding is to be cut by 4% in 2016/2017, to £2.687bn, and by a further 3.4% in 2017/2018, to £2.592bn. From December 2016 establishment payments, worth around £25,000 per year, will be cut by 20% and a new single ‘activity fee’ will be introduced, plus a new pharmacy access scheme to protect the viability of some pharmacies. q Image courtesy of Celesio

www.yourexpertwitness.co.uk

27 27

28 28

www.yourexpertwitness.co.uk

Benzodiazepines linked to hip fracture risk among dementia sufferers [

A STUDY IN Finland has shown that people with Alzheimer’s disease (AD) who are prescribed benzodiazepines have a 43% increased risk of hip fracture.

Benzodiazepines are drugs used to alleviate anxiety, agitation and sleep disturbances.

The report, published in the Journal of the American Medical Directors Association, was quoted on 2 December by the Pharmaceutical Journal in the UK. Researchers found that, although the use of benzodiazepines increased the risk of hip fracture across the board, patients with AD were more likely to end up in hospital for longer than four months after the fracture.

The researchers say this could be because people with AD often suffer from delirium, may require more demanding rehabilitation, or because of functional decline – loss of independence in self-care capabilities usually linked to deterioration in mobility – resulting from the use of benzodiazepines themselves.

The results suggest more caution should be used before prescribing them.

Commenting on the research, Alzheimer’s Society research communications manager Clare Walton said: “Benzodiazepines are known to increase the risk of falls in older

people, but this is the first study to specifically examine its effects in people with Alzheimer’s disease. This is important because the drug can be used to treat the anxiety, agitation and insomnia that often comes hand-in-hand with dementia.”

She adds: “People with Alzheimer’s disease are already more susceptible to falls and are twice as likely to experience hip fracture. This study finds that benzodiazepine increases that risk even further, reinforcing our view that person-centred care approaches should always be considered first for people living with dementia.”

Considering the ‘rapidly increasing’ number of people being diagnosed with AD globally, and the more frequent use of benzodiazepines in this population, the researchers conclude that it is important to reduce the risk of hip fracture, which can be a ‘devastating event’.

Lead author Laura Saarelainen, a PhD researcher at the University of Eastern Finland, said: “Other treatment options should be considered. Benzodiazepines should be used only in short-term or infrequent treatment of behavioural symptoms of Alzheimer’s disease.” q

AvMA encourages public to voice concern over extension of ‘safe space’ principle [A CONSULTATION ON extending ‘safe space’ arrangements in NHS

investigations carried out by the new Healthcare Safety Investigation Branch to all NHS safety investigations ends on 16 December.

The patient safety watchdog charity AvMA has expressed opposition to the proposals and has urged anyone who shares its concerns to respond to the consultation.

The proposals for ‘safe space’ arrangements were designed to offer protection for whistleblowers and encourage staff to report malpractice without fear of being victimised. However, AvMA says the new proposals would include withholding information from patients and families – even when it directly relates to what happened in their treatment. That could see relevant information being withheld from patients and their families harmed by lapses in patient safety.

The consultation asks whether this should be phased in, potentially starting with maternity cases.

According to AvMA: “Whether phased in or not, this would mean that local NHS trusts investigating their own serious incidents would be able to withhold relevant information from patients and families if they believed this was important for providing a ‘safe space’ for health professionals, so that they could provide evidence without fear of blame or serious consequences.”

AvMA chief executive Peter Walsh said: “This proposal is misguided and very dangerous. We fully support initiatives to protect all staff, including whistleblowers, from inappropriate or disproportionate blame from employers or regulators, which is what they tell us they most fear.

However, allowing the covering up of the full truth about what happens

in patients’ treatment from them or their family is unethical and in direct contradiction to the NHS Constitution and the statutory Duty of Candour brought in just two years ago.

“There is an obvious conflict of interest in allowing NHS trusts who are investigating themselves to use the ‘safe space’ principle as an excuse to hide the truth about their treatment from patients. If it were to go ahead this proposal amounts to state legitimisation of cover ups. We urge everyone to respond to the consultation to make sure it doesn’t.” q

www.yourexpertwitness.co.uk

29 29

30 30

www.yourexpertwitness.co.uk

PI lawyers’ ads still on display at A&E depts [

ON 28 NOVEMBER BBC Radio 4’s consumer affairs programme You and Yours revealed that hospitals were still carrying advertisements for personal injury lawyers on information leaflets in A&E departments. That, said the programme, is four years after NHS trusts had been told they should not carry such advertisements.

The programme revealed that the rules regarding who can advertise on NHS premises are ‘guidelines’ and not binding on individual trusts. They interviewed Tory MP Andrew Bridgen, chair of the Commons Regulatory Reform Committee, who had raised the issue back in 2012. He described the fact that the ads are still widespread as ‘shocking’.

The income generated by the advertising generates many thousands of pounds for the trusts involved, the publishers claim. In one case the money had been used to pay overdue overtime, while in another it had been used to buy heart monitors. q

Compensation scheme for birth injuries could replace litigation

[

IN OCTOBER THE government announced a consultation on the establishment of a ‘rapid resolution and redress’ (RRR) scheme for babies who have been injured at birth in the NHS. The proposal formed part of a raft of measures announced by the Department of Health aimed at improving maternity care.

A statement from the department said: “The RRR scheme could investigate and learn lessons from more than 500 incidents a year. In cases where harm was avoidable this would offer timely access to financial support without the current obligation on families to launch a formal legal process. At present, the average time families have to wait for resolution of a case is 11.5 years.

“Eligible families would be given the option to join an alternative system of compensation that offers support and regular payments without the need to bring a claim through the courts and the scheme would ensure families receive personalised support including counselling, case management and legal advice.”

Reacting to the announcement, APIL president Neil Sugarman said: “Compensation for these catastrophic injuries has a very clear purpose and, in these cases in particular, it is critical that the right amount of compensation is made available to injured children to ensure they receive the care they desperately need.

“We have yet to see the details of the consultation, but we will be reminding the Department of Health that children suffering cerebral palsy and brain damage at birth need round-the-clock medical care, specialist equipment and support for the rest of their lives.

“The fact that the number of claims for these injuries has barely changed in the past ten years is a national scandal, and we welcome any attempt to improve this situation and the legal process which families have to navigate…but not at any price.” q

Report into Panorama care homes published [

IN THE WAKE of the BBC Panorama programme exposing standards of care at two care homes in Cornwall, the Care Quality Commission has published the full findings of its inspections of the four homes run by the company at the centre of the investigation, Morleigh Care.

All four homes were rated as ‘Inadequate’ and placed into special measures following the inspections. In a statement the CQC said it is “…currently taking further action to protect the safety and welfare of all the people living at the homes”.

Andrea Sutcliffe, CQC’s chief inspector of adult social care, said: “These reports make horrifying reading: people in distress being ignored by staff; a person lying in a urine-soaked bed for two hours; people sat in the same chair all day with uneaten meals in front of them and no help to eat or drink; someone needing medical attention waiting weeks to be referred to their GP. “These services were providing grim, shoddy and unsafe care – the sort that no one should ever have to put up with. I am sorry that people have had to endure this poor level of care.”

In a media statement issued after the publication of the report, the owner of Morleigh Care said: “We are naturally disappointed the regulator has now adjudged the four homes to be ‘Inadequate’, despite 11 of the 20 areas assessed as ‘Requires Improvement’, with many of the findings confirming the areas we have already identified for improvement.”

The statement went on to disagree with one of the views expressed by Andrea Sutcliffe, adding: “I will continue to focus on making necessary improvements for our residents, and I will allow my legal team to examine that comment in more detail.” q

www.yourexpertwitness.co.uk

31 31

32 32

www.yourexpertwitness.co.uk

Even mild brain injury may need effective treatment

By DR LINDA MONACI, Consultant Clinical Neuropsychologist

[ANY EVENT WHICH involves trauma to the head, such as a

road traffic accident, may result in a brain injury causing cognitive, emotional and physical symptoms. The severity of a brain injury is usually graded as mild, moderate or severe – and this can help provide guidance on recovery and the rehabilitation required.

In cases of mild brain injury, only a minority of individuals experience cognitive and emotional symptoms a year after the event and there are currently disagreements about the conceptual framework in which persistent symptoms after such an injury should be considered and consequently treated.

Some experts regard the symptoms as being due to the neuronal and pathogenic process associated with a traumatic brain injury; others regard the symptoms as merely co-occurring after a brain injury – triggered by the same event, but produced by different mechanisms.

To complicate matters, there are also cases in which a very minor blow to the head can cause persistent cognitive and emotional symptoms, even though any brain injury is arguably very unlikely.

Given the secondary gains involved in a compensation claim, it is always necessary to consider symptom magnification and/or cognitive underperformance as potential contributing factors to an individual’s presentation.

Why involve a clinical neuropsychologist?

A clinical neuropsychologist will assess in detail someone’s cognitive and emotional functioning.

In addition, hospital and GP records should be reviewed. Such comprehensive assessment is essential in order to correctly identify the severity of a known or suspected brain injury, as well as any pre-existing vulnerabilities. This, in turn, informs on recovery and provision of the most effective rehabilitation treatment – as well as impacting on the potential financial value of a case.

Disregarding the complexities of psychosocial variables may otherwise lead practitioners to erroneously conclude that someone is intentionally feigning their symptoms when this is not the case.

Alternatively, offering therapy in cases in which symptom overreporting is strongly suspected is likely to yield no benefit from treatment. q

Case study

The following example does not represent any single individual in order to preserve confidentiality.

A young man does not receive any formal cognitive assessment or guidance by NHS services following a mild traumatic brain injury caused by a car accident. NHS treatment focuses on his other injuries, but he does experience cognitive problems. He goes online and reads about brain injury symptoms.

During rehabilitation – funded by a compensation claim – his cognitive symptoms are attributed to emotional disturbances and he does not receive any expert formal assessment of his cognitive functioning. He is referred to a charity for people with head injuries, where he shares his difficulties with others. He starts feeling that his life is ruined and feels resentful towards the driver of the car in which he travelled.

A year after the accident he has not yet returned to work due to his cognitive problems. He still suffers from anxiety and depression and his everyday living activities are very limited. Eventually, he receives an expert clinical neuropsychological assessment as part of his compensation claim.

At formal assessment his cognitive test results indicate intact cognitive skills and treatment recommendations are made. He goes on to receive cognitive behavioural therapy (CBT) from a clinical neuropsychologist, including guidance on recovery following a mild brain injury and symptom misattribution.

The aim is for the young man to feel satisfied again with his abilities and feel able to cope, to gradually return to work, for his mood to improve and for his activities to return to normal levels.

This example highlights the importance of considering the whole clinical picture – also relying on validated and standardised tools – for the purpose of establishing diagnosis, causation and prognosis. www.yourexpertwitness.co.uk

33 33

Support for mental illness in pregnancy and childbirth crucial, say professionals [NHS ENGLAND HAS announced plans to

provide more support for pregnant women and new mums suffering mental illness.

According to the Royal College of Obstetricians and Gynaecologists (RCOG), around one in five women develop a mental illness during pregnancy or in the first year after delivering their baby and one quarter of all maternal deaths between six weeks and a year after childbirth are related to mental health problems.

Despite those alarming figures, says RCOG, in almost half of the UK pregnant women and new mothers have no access to specialist maternal mental health services and only 3% of Clinical Commissioning Groups have a maternal mental health service strategy.

RCOG president, Professor Lesley Regan, said: “We welcome NHS England’s

commitment to improving mental health care for pregnant women and new mothers.

This initiative will not only provide invaluable support to women in the community, but also ensure that women can be referred to specialist services in a timely manner.

Buddying and telephone support initiatives will also ensure that women feel able to share their own experiences and prevent feelings of isolation.”

Janet Fyle, professional policy advisor at the Royal College of Midwives (RCM), commented: “Not every woman with pregnancy related mental health problems needs to go to a mother and baby unit. Those with serious mental illness need this type of care, but unfortunately these specialist units are few and far between.

“The RCM for some time now has been calling for more community focused services and recognition that some women with pregnancy related mental illness can be treated nearer their home, where they can be monitored by a specialist team to stop their condition escalating.

This type of care and treatment is inexpensive, more practical and is more effective.

“However, the RCM would like to see a specialist maternal mental health midwife in post in every maternity unit and trained to the standards developed by the RCM. We cannot continue to read the constant reports of the number of women killing themselves because they were not identified earlier and treated or because of the lack of trained staff or as a result of lack of services; it’s heart breaking and we can do better as a country.” q

Psychologists call for continued improvement in stroke care [

THE British Psychological Society (BPS) has signed a joint statement from clinical leaders in the stroke community calling on the government and NHS England to make a commitment to push for improvements in stroke care following the ending of the current National Stroke Strategy in 2017.

34 34

www.yourexpertwitness.co.uk

Between 1990 and 2010 a concerted national effort and political leadership reduced the mortality rate for stroke patients by 46%. However, that momentum has slowed and future progress is now in jeopardy.

The statement, signed by 16 organisations, calls for government action in three areas: • An implementation plan for new treatments, so that people with stroke have access to them regardless of where they live • A focus on post-acute care, so that people get the rehabilitation they need quickly and of sufficient intensity and duration to make the best recovery possible • A focus on prevention, which will not only save lives but also reduce the effect of the most severe strokes.

BPS president Professor Peter Kinderman said: “With more people than ever surviving this devastating condition, we need a new era for stroke.

New treatments such as thrombectomy – a mechanical clot retrieval operation – need to be made available across the country.”

There has been much attention in the news media to the new treatment of thrombectomy and the sporadic availability of the treatment throughout the country.

Professor Kinderman continued: “Stroke survivors urgently need access to the rehabilitation support they need to make a good recovery, no matter where they live. And we need initiatives to prevent more people from experiencing stroke in the future.” q

Historical child abuse: making a psychiatric assessment of the effects

By DR PAUL MCLAREN, Consultant Psychiatrist, Expert in Mind

[

THE RECENT PUBLIC focus on historical child abuse has led to an increasing number of personal injury claims. That presents particular challenges for both survivors and psychiatric experts.

Survivors will be asked to remember deeply painful experiences associated with powerful negative emotions such as shame, guilt and anger. Their instincts and psychological defences will have worked to suppress their memories of the events for many years.

They will usually have been through police and solicitors interviews before they get to a psychiatric expert, but they will still be raw and frightened and often overwhelmed with shame.

To get the most from the interview the process needs to help the survivor to feel as safe as they can. They may associate psychiatry with social work and even professionals who previously abused them.

Some find it helpful to have a pre-interview telephone call to ask what will happen; and hearing the voice of the expert before the interview can offer reassurance.

The interview has to be finely tuned to the survivor’s mental state at the time. If they are prone to using alcohol or drugs to manage their emotions then they should be encouraged not to drink or use before the interview. That should not be just assumed, and some will find it very difficult to do.

Clear explanation of the interview process

can help to establish it as a safe place. A supportive statement should make clear that if there are any areas which they do not want to explore then that should be their choice. They can stop a line of questioning, or even the interview, at any time if they wish. It may be best done over a number of sessions, which facilitates the building of trust.

For the expert one of the most challenging questions is the ‘but for’ question – but for the index abuse, where would the survivor have ended up. Some will have had traumatic family lives before the index events which led to them being placed in care or taken away from their families. Having objective information on their pre-incident functioning from school or social services reports can be helpful.

A positive assessment is one which both addresses the issues raised in the letter of instruction and is cathartic for the survivor – increasing the chances of them being able to subsequently engage in psychiatric treatment for their injuries. q

www.yourexpertwitness.co.uk

35 35

Mental Health Act: CQC finds good practice, but soap story reflects failings [ON 18 NOVEMBER the Care Quality

Commission (CQC) published its annual review of how the Mental Health Act is being applied by healthcare providers in England and Wales.

The CQC found that there is a lot of good practice in how psychiatric in-patient units are caring for people when detained under the Mental Health Act, but that there is still much to be done to improve.

They outlined how several healthcare services are using the Act to maximise people’s recovery, well-being and support when they have been detained. However, the review raises concerns that progress needs to happen at a faster pace for key issues, such as patient involvement and protection of rights.

According to the CQC, more than half of the inpatient psychiatric wards they reviewed had not demonstrated that they had trained their staff in the Code of Practice and more than half had not updated their policies, despite the code being introduced over 18 months ago.

Critically, in 12% of the patients CQC interviewed on its visits there was no

36 36

www.yourexpertwitness.co.uk

evidence that they were informed of their right to an Independent Mental Health Advocate, who would offer support to them and enable them to be involved in decisions about their care.

Dr Paul Lelliott, CQC’s deputy chief inspector of hospitals and lead for mental health, said: “We know that it is a challenging time for all health and care services across the country, with rising demand and strained resources; however, the priority must continue to be on patient care, recovery and need. We are frustrated that there has been little progress since last year’s report.

“As the quality regulator we will continue to play our part in supporting services to improve and taking action to protect people where necessary. We expect providers and commissioners to recognise this urgent need for change and to do the same.

“Mental healthcare professionals are one of the very few groups in our society that have the authority to deprive people of their liberty. It is absolutely vital that safeguards are in place to guarantee that people detained under mental

health legislation both know their right to challenge their detention and are enabled to exercise this right.”

Responding to the report, the Registrar of the Royal College of Psychiatrists, Dr Adrian James, commented: “The Royal College of Psychiatrists welcomes all attempts to safeguard the human rights of our patients. Better access to services across all levels of care will ensure that patients are cared for in the least restrictive environment and that effective care is given at the right time and in the right place.”

Reflecting the prevalence of moving patients many miles away from their homes for treatment – reflected in the storyline regarding Belle Dingle in the ITV soap Emmerdale – Dr James stated: “The report highlights many areas of good practice where mental health teams work positively with patients, but support is needed to eradicate out-of-area placements: a key recommendation of Lord Crisp’s report on acute psychiatric care. However, in order to ensure full implementation across all areas it is essential that we train more mental health workers, including psychiatrists.” q

Cultural and religious issues in childcare: parents versus the state

By DR BASHIR QURESHI FRCGP FRCPCH Hon 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

[THE LEGAL SYSTEM of every country is influenced by culture,

religion and ethnic distinctions. Parliaments pass only those laws which are acceptable to the majority of their populations, without undermining the minorities. Sometimes, a citizen of one country is tried in the court of another country.

In this article, I am highlighting some cultural and religious differences which exist in terms of the responsibility of parents versus the state in western countries such as the UK and eastern countries such as India, Pakistan, Bangladesh and Sri Lanka.

Western countries

In a western country the responsibility of care for children, from birth to age 18 years, is shared equally between parents and the government. If a couple is found to be negligent or punitive to their child, the state takes over through social workers and sometimes the police. Then the court decides in which child-care home and for how long to keep the child. The reason for this is that every child is considered to be a free citizen, a future taxpayer and a potential soldier to defend the country.

Every child is expected to be treated well – physically, psychologically and socially by their parents or foster parents. Children are supervised by neighbours, teachers and social workers, who may report any case of negligence or abuse to the police for removal of the child to a place of safety until the case is heard.

Some countries have clinical public health services for regular immunisation and surveillance of all children from birth to 18 years of age.

Such services are manned by doctors, nurses and health visitors, who monitor and help children in baby clinics and schools. Britain had such a service until 2000 and so child negligence and abuse – physical or sexual – were picked up straightaway.

However, every service also has side effects. As a school doctor from 1972 to 1998, I heard a 15-year-old Asian girl threatening her father that, if he did not let her go out in the evenings with other teenagers, she would tell the teacher that he had abused her. Such cases were rare, however. On the whole it was a superb service which had to be closed due to the national financial crisis. Now, child abuse and sexual abuse are big national issues.

Nevertheless, the vast majority of parents care for their children.

Eastern countries

In an eastern country the responsibility to care and bring up every child, as best as possible, belongs to the parents and their extended family. It is not possible to share the care with the state for many reasons. In dire cases, police can be notified by relatives and proceedings can take place – mainly in the criminal courts.

Religious circles play an important role in child care.

The customs include: • A child is part of an extended family and not an independent • person: unlike in western countries, where the nuclear family • system prevails and every child is considered a free individual.

• Some parents may have many children. Nine or 10 are not • uncommon, however a few may die early due to infections or • other diseases.

• Family planning is a religious taboo in many cities and • especially in villages.

• Poverty is prevalent. Some children cannot afford to go to • school and have to work to provide income for their parents to • buy food and clothes.

• Arranged marriages are routine due to cultural and religious • requirements.

• A girl’s virginity is essential for an arranged marriage, so as not • to lose the family name, honour and inheritance.

• If a girl becomes pregnant, marriage to the father is compulsory • and relatives in both families accept it with a pinch of salt.

• Girls are cared for far more closely than boys. The mother is • responsible for protecting her daughter’s virginity. The father is • the breadwinner and is not left alone with his daughter.

• The father and brothers are responsible for family honour. If a • married woman commits adultery or a girl goes abroad to have • a love marriage, the tribe expects the father and brothers to • prove their family pride. Some arranged murders may occur and the • police forces are made up of local residents, who follow local • customs.

Consequently, to preserve extended family and tribal unity, the criminal courts in eastern countries do not consider family honour killings in the same way as in western countries. Such a murder may become manslaughter, or the father or brother might go free in order to teach a lesson to other girls. This varies with country or region.

This is an example of a ‘philosophical double doctrine’, whereby it is acceptable to do a bad act to achieve a good result – for example killing four hijackers to save 40 hostages. Ultimately the court decides. q www.yourexpertwitness.co.uk

37 37

38 38

www.yourexpertwitness.co.uk

Illegal whitening cases still dominate [

THE MOST COMMON SUBJECT of news stories on the website of the General Dental Council (GDC) continues to be the prosecution of people for illegally carrying out tooth whitening.

As recently as 1 December a report was posted regarding a case at Llandudno Magistrates’ Court, where a beautician from Colwyn Bay was handed a conditional discharge after admitting unlawfully practising dentistry last year.

In that case the ‘victim’ experienced pain and sensitivity to her teeth for several weeks and was forced to seek help from a qualified and registered dentist. After examining her, the dentist confirmed that the victim had been suffering from a pre-existing condition and that this had been exacerbated by the illegal tooth whitening treatment. She noted that the victim was an obvious patient who should not have been offered tooth whitening due to her pre-existing periodontal disease.

The case was the latest in a string of reports throughout this year in courts ranging from Scotland to Hampshire.

In its FAQs page, the GNC states: “Only registered dentists, dental therapists, dental hygienists and clinical dental technicians, working to the prescription of a dentist, can perform tooth whitening.”

Following the Colwyn Bay case, Victoria Sheppard-Jones, interim head of illegal practice at the GDC, commented: “Tooth whitening carries risks if it is not carried out by someone who is on the register of dental professionals who has the skills, training and experienced to do it safely.

“If the procedure is not carried out by a registered professional, it can cause damage to the teeth and gums and cause severe pain and sensitivity – and it can also, as was the case here, exacerbate pre-existing conditions.

“Only those with the proper medical training are able to make a thorough assessment of your mouth before going ahead with the treatment – and this is why we urge anyone who is considering tooth whitening to check our online register to ensure the person offering it is qualified and registered to do so.” q

Peri-implantitis: bone disease claims set to swell [

A POSSIBLE ‘tsunami’ of dental negligence claims first predicted in 2013 has so far failed to materialise, but dentists are still braced for what could be a wave of cases of the little-known ‘man-made’ medical condition: peri-implantitis.

Peri-implantitis is an infectious disease that causes inflammation of the surrounding tissue and bone of dental implants, eventually leading to the deterioration and loss of the bone where the implant has been connected. It can happen without the patient being aware of it, as there is little or no pain in the early stages. It can happen at any time after having had the implants, in some cases soon after having the treatment and in other patients many years after.

According to one commentator: “Though in some cases periimplantitis is just an avoidable side-effect of having a dental implant, in other cases it can be caused as a result of negligent treatment given to you by your dentist. They have a responsibility take all of the necessary precautions to ensure that all risks are minimised as much as possible, ensuring that the procedure is carried out to a high standard.

“Also, before any procedure is carried out, your dentist is obliged to inform you of all risks associated with the procedure, so you can make an informed decision on whether or not you wish to continue.”

The condition came to public attention in 2014 with reports of the case of a Hull businessman, who spent £25,000 on dental implants prior to his daughter’s wedding.

Initially he was very pleased with the results but soon the bridge started to come loose – it even flew out of his mouth at a meeting when he became passionate making a point. This was only the start of his problems. Over the next few years two of the crowns had to be pasted back into place on several occasions, one broke when he bit into a plum and another disappeared during the night while he slept.

Eventually it emerged that he should never had implants as there was insufficient bone on his jaw to support the pins and crowns. q

Dentists have their own PI issues [PERSONAL INJURY CASES involving dentists aren’t confined

to those where the patient complains of negligence by the dentist: the dental professionals themselves are increasingly suffering damage in the form of noise-induced hearing loss in the workplace.

Although noise levels in a dental clinic are generally quite low, at times they can be extremely high. Some dental drills create levels above 100dB – exceeding recommended maximum levels. Old drills and dental instruments are most likely to be too noisy.

A study among Saudi dentists, published in the British Dental Journal and quoted by the British Dental Association, found that around 15.8% of the dentists in a study had some hearing loss, compared to 2.6% of a control group. q

www.yourexpertwitness.co.uk

39 39

Potential for conflict between counsel and witness

By TOBY TALBOT BDS MSD (Washington) FDS RCS

A specialist in restorative dentistry, prosthodontics, endodontics and periodontics, with over 20 years as an expert witness taking a specific interest in dental negligence litigation claims, TOBY TALBOT shares his thoughts on dentistry and medico-legal matters at the coalface.

[

THE PROTOCOLS BETWEEN warring litigious parties are well established. Counsel represents their client either acting for the claimant versus the opposing defendant, practitioner or health authority, or for the defendant in a claim for damages. The expert acts for the court and must remain wholly non-partisan – a fact reiterated each time a report is formally addressed to the court. But, however clearly drawn the battle lines are, there are a several ways in which they can be so easily blurred.

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

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

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

It is also worth noting that although a professional body commissions an expert for guidance, their expert never examines the claimant. In my experience this can lead to misguided decisions against practitioners.

When I have disagreed with the conclusions of Conduct Committees I have often been told by instructing counsel that I am not permitted to contradict their findings. A wholly misinformed assumption.

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

What counsel do not understand is that the details of the clinical records will invariably influence prognosis. If I review the records and conclude, after I have examined the patient, that patient compliance is so poor that the previous practitioner was not to blame, then this will invariably influence my own treatment recommendations for that patient.

As an example, let’s take a patient who has been under the care of a general dentist for 20 years before discovering they have advanced periodontal disease with bone loss that will invariably lead to tooth loss.

A review of their dental records shows limited documentation related to

40 40

www.yourexpertwitness.co.uk

assessment of the gums, except intermittent advice to brush their teeth a bit more, and routine scaling every six months.

When the patient attends another practitioner they suddenly feel shocked and aggrieved due to the ‘failings’ of their previous practitioner.

Blame is apportioned and a visit to counsel ensues. An initial Breach of Duty Report follows after a review of the dental records where the omissions are serially pointed out by the expert.

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

I am then instructed to examine the client to provide the Current Condition, Prognosis and Treatment options perhaps 18 months after they attended the periodontist. At the consultation the client presents with ongoing severe active periodontal disease associated with abundant plaque deposits throughout. It is clear this patient has not taken a blind bit of notice despite repeated visits to the periodontist, and is quite ill-suited to expensive dental implants.

Not only do I consider that he/she is a candidate for conventional dentures, but I consider that he shows such a disregard for his own responsibility for optimum oral health that in all probability he is behaving as he did with the defendant, ignoring advice and failing to comply. In essence, the client is wholly culpable for their own tooth loss.

It may not surprise the reader that counsel are often furious with my conclusions and imply that I have ventured beyond their instructions for the Condition and Prognosis Report. Not so, I point out. My duty is to the court. Their error is to assume that a second expert will always agree with the conclusions of a previous Breach of Duty Report. The only way to avoid contradictions between the two reports is to ensure only one expert is engaged.

In another case involving untreated periodontal disease I found in favour of the patient. Subsequent quantum of £3,600 was offered by the indemnity insurers which led me to file the records for archiving.

Imagine my surprise when I received a demand for £30,000 from the patient’s agents three months later as a consequence of my failure in my duty!

It transpired that during previous meetings with counsel, the client’s solicitor had indicated to the client that he could expect a pay out of £35,000. As a consequence, the client issued instructions to the same solicitor who had instructed me to sue for the difference between what he expected and what he finally received. The author invites the reader

to consider whether there is an integrity issue, and whether the solicitor should have referred the case to another firm.

In my experience, the consequences of soured relations between expert and counsel are several and include: • Deprivation I have received no response after sending a report and the anticipated payment of my fee fails to arrive on time. Some firms have resisted paying my fees which invariably leads to a claim in the small claims county court and a complete breakdown in our relationship.

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

• Procrastination Firms have asked for a precise breakdown of time allocated for the report and then quibbled endlessly about minor typographical errors.

• Omission Several firms have asked me to omit certain paragraphs that weaken their case. When I refused, they complained that I had sent the report in pdf format and asked me to re-send it as a Word document!

• Disqualification Some firms have tried accusing me of venturing outside and beyond my area of expertise. It is to be noted that, as a former hospital consultant and a Fellow of the Royal College of Surgeons, my understanding of general medical and surgical issues is likely to be a little more than that of the general dental practitioner. I have been responsible for patients undergoing critical care, victims of

severe road traffic accidents, and head and neck oncology patients.

But I am a dentist!

This old lag isn’t one to offer criticism without constructive advice.

To avoid many pitfalls for the office of counsel, I recommend due diligence is conducted by the solicitors’ office to ensure that the selected expert can deliver the goods.

If the case is simple and straightforward, and thus wholly within the remit of a general practitioner, you can commission a general dental practitioner.

But you may need a dental expert. A maxillo-facial surgeon can give you a critical appraisal of a wholly surgical issue. He or she cannot give a dental opinion. If the problems relate to periodontal disease, find yourself a periodontist. If the problems relate to failed root canal treatments, find yourself an endodontist. Failed denture or crown and bridgework?

Get yourself a prosthodontist. Is the case multifactorial and covers a broad range of dental problems? Get yourself a specialist in restorative dentistry. They are all dentists, but they’re all different creatures.

It is important to checkout whether the expert is still active at the coalface.The author attended a professional meeting in London quite recently and met a colleague who is very proactive as an expert witness. He had just celebrated his 85th birthday having retired as a clinician 20 years ago. How on earth can counsel expect him to be up to date? He will invariably find himself before a judge (in all probability and ironically of advanced years) giving evidence only to be publicly humiliated when asked the ultimate question by the opposing QC: When did you last undertake a similar procedure? q • All the views and opinions expressed by the author are personal but I would welcome public debate on all the issues included. For further information visit www.tobytalbot.co.uk.

www.yourexpertwitness.co.uk

41 41

42 42

www.yourexpertwitness.co.uk

The challenges of fibromyalgia for medicolegal cases

By DR CHRISTOPHER JENNER MB BS FRCA FFPMRCA, Consultant in Pain Medicine at Medicolegal Associates Ltd

[

FIBROMYALGIA, OR FIBROMYALGIA SYNDROME (FMS), is a chronic and widespread pain disorder which is characterised by widespread body pain, poor sleep, tiredness, fatigue, cognitive disturbance and a constellation of other symptoms.

Anyone can develop fibromyalgia, although it affects around seven times as many women as men. The condition typically develops between the ages of 30 and 50, but can occur in people of any age, including children and the elderly.

It’s not clear exactly how many people are affected by fibromyalgia, although research has suggested it could be a relatively common condition. Some estimates suggest nearly 1 in 20 people may be affected to some degree. One of the main reasons why it’s not clear how many people are affected is because fibromyalgia can be a difficult condition to diagnose.

Unfortunately, the cause of fibromyalgia is unknown, but there are thought to be multiple factors involved and that it is related to abnormal levels of certain chemicals in the brain and changes in the way the central nervous system process pain messages from the body. Scientific research shows that patients who suffer from the pain of fibromyalgia have changes that occur in the peripheral and central nervous systems. These changes make patients hypersensitive and more likely to experience pain and other fibro symptoms.

Clinical examination findings may reveal multiple trigger points – these are taut bands of muscle which, when palpated on examination, reproduce pain. In contemporary practice a more useful diagnostic tool is to use the American College of Rheumatology criteria for a diagnosis of fibromyalgia syndrome. This criteria specifically looks at pain location, fatigue, sleep disturbance and cognitive disturbance, along with a checklist of 40 associated symptoms.

Multi-disciplinary treatment tailored to the patient’s needs is recommended to help improve some of the symptoms and make the condition easier for the individual to manage. Treatment tends to be a combination of anti-neuropathic and analgesic medication, talking therapies such as CBT and counselling, life style changes such as graded and paced exercise programmes and relaxation techniques.

The medicolegal challenges facing solicitors surrounding fibromyalgia arise from the subjectivity of symptoms, causal attribution and reported symptoms sufficiently severe to cause disability. While fibromyalgia is accepted as a medical condition, the diagnosis is susceptible to misuse due to the subjectivity of symptoms.

The number of legal cases involving fibromyalgia is on the increase, as is the incidence of fibromyalgia symptoms starting after a trauma such as road traffic accident. The trauma suffered can also exacerbate fibromyalgia in sufferers.

Difficulty can arise when the original trauma is limited, relatively minor or the expected improvement does not happen. Also a range of other symptoms associated with fibromyalgia can occur. This is when the fibromyalgia diagnosis may be missed for some time or challenged.

The assessment and diagnosis of disability in chronic pain states, including fibromyalgia, can be difficult due to its subjectivity and complexity. An assessment by an expert in pain medicine at this stage is usually extremely valuable. Furthermore, chronic pain can be particularly challenging for the courts to understand in terms of the prototypical perception of disease that associates pathogenesis with tissue damage or dysfunction.

The expert in pain medicine will be able to assist the court in assessing the level of resulting disability. q

www.yourexpertwitness.co.uk

43 43

44 44

www.yourexpertwitness.co.uk

New guidance looks to reduce ectopic pregnancy deaths [

EARLY DIAGNOSIS AND appropriate treatment of the different types of ectopic pregnancies is essential if the number of women who lose their lives from the condition is to be further reduced.

That is the message of revised guidelines published on 4 November jointly by the Royal College of Obstetricians and Gynaecologists (RCOG) and the Association of Early Pregnancy Units (AEPU).

An ectopic pregnancy is a pregnancy that grows outside the womb. In the UK one in 90 pregnancies result in an ectopic pregnancy, with an estimated 11,000 ectopic pregnancies diagnosed each year.

Most ectopic pregnancies occur in the fallopian tubes; however, 3-5 out of 100 occur in other places, such as the cervix, ovary or abdomen.

A pregnancy is unlikely to survive in those situations and it can put the woman’s life at risk. Six maternal deaths were reported between 2006 and 2008; but the number has decreased over recent years,

suggesting that earlier diagnosis and treatment may have made an impact.

Risk factors for such pregnancies include a previous ectopic pregnancy, tubal damage following surgery or infection, an intrauterine device, the progesterone-only pill, smoking, advanced maternal age and IVF. However, the majority of women with an ectopic pregnancy have no identifiable risk factor.

The new guideline provides evidencebased information on the diagnosis and management of ectopic pregnancies, including the surgical, pharmacological or conservative treatment options available and the level of support that should be offered to women.

It also states that, in the absence of a history of subfertility or tubal pathology, there is no difference in the rate of fertility, the risk of future tubal ectopic pregnancy or tubal patency rates, between the different management methods. This is welcome news for women who have experienced an

ectopic pregnancy and are worried about their fertility prospects.

Ms Janine Elson, lead author of the guideline and spokesperson for the RCOG, said: “Ectopic pregnancies can be life threatening, so it is important women seek help immediately if they are experiencing symptoms. Any woman of childbearing age who is having sex could have an ectopic pregnancy.

“An ectopic pregnancy is a very personal experience, and the psychological impact can be very significant. It can mean coming to terms with the loss of a baby, with the potential impact on future fertility, or with the realisation that a woman could have lost her life.

“Each woman copes in her own way, but it is important that she feels supported. The guidelines reinforce that women undergoing treatment should be made aware of how to access support via patient support groups, such as the Ectopic Pregnancy Trust, or local bereavement counselling services.” q

www.yourexpertwitness.co.uk

45 45

When the formation of the vascular system goes wrong, sometimes its treatment goes wrong, too

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

[VASCULAR MALFORMATIONS (VM) form only a small part

Arterial vascular malformations often contain large amounts of blood of vascular surgical practice, but the treatment of them may give flow. Coils or gelfoam are injected into the larger feeding arteries to rise to serious adverse events unless they are carefully managed. slow the flow. The smaller vessels can be blocked by injecting absolute The origin of these conditions arises during embryonic life, when alcohol. VMs comprise very abnormal blood vessels and the materials the vascular system is assembled during the early phases of injected may be carried straight through them into adjacent normal development of the embryo. tissue, which may be damaged. Alcohol injection may damage adjacent Initially the embryo has no circulation, but by four weeks into nerves, skin and other tissues, leading to loss of the skin and weakness gestation the heart is beating and the circulation is established. The of muscles. Great care must be taken to minimise the risk of such arteries and veins begin as ‘lakes’ – isolated collections of blood cells collateral damage. inside primitive vessels with no connection to any other vessel. They VMs composed exclusively of veins are much more common than join up to form the arteries and veins which participate in the circulatory arterial malformations and are readily managed by sclerotherapy system, continuing to grow with the developing embryo. (injection treatment) in a similar way to the treatment of varicose veins.

The fact that the heart and blood vessels are ‘assembled’ during Alcohol was the first drug used to inject venous malformations. It is foetal life leads to the possibility that mistakes will occur in the joiningeffective but very painful for the patient during injection, and carries the up of the system. The most common problem is a collection of veins risk of damage to skin, nerves and adjacent structures. More recently that look like varicose veins – often in unusual places, where varicose the sclerosant foam used to manage varicose veins has been employed. veins would not normally occur. Anatomical sites outside the lower That usually causes little discomfort on injection and is effective in limbs include the upper limb, head and neck. destroying the vessels which comprise a venous malformation, without In some cases the arteries are also involved and can connect directly the risks of damage to adjacent tissues. After a number of sessions of to veins. Blood flow is very large through treatment, considerable reduction in the such connections, leading to a steady size of venous malformations can be increase in size of that type of vascular achieved with lasting remission. malformation, usually during the young adult life of the patient. Some types Adverse events arising from of vascular malformation also involve sclerotherapy lymphatic vessels that normally drain In general, sclerotherapy is a safe tissue fluid; many involve combinations of and effective treatment for venous arteries, veins and lymphatic vessels. malformations. Problems arise when As far as patients are concerned, excessive volumes of sclerosant vascular malformations are often drug are injected, or an injection is present at birth or appear within the first inadvertently placed into an artery within year of life. They are often small and the many abnormal vessels of a venous appear as a blue patch on the skin. As malformation. An inadvertent injection of the child grows, so does the vascular an artery with a sclerosant drug or foam malformation, with localised swelling and intended for a vein may cause severe blue or dark discolouration of the affected and extensive damage well beyond the region. Some remain small and localised; limits of the venous malformation. others are very extensive, affecting the The treatments are usually undertaken whole of a limb or half of the body. They by interventional radiologists, who are may result in considerable overgrowth of accustomed to the management of such part or all of a limb. conditions. Before any injection is done, The management of them depends x-ray contrast is injected to check the very much on the components of the position of the needle. Despite that, I vascular malformation. Surgery was once have advised in several cases where the main form of treatment, in which inadvertent intra-arterial injection has led VMs were excised. However, surgical to substantial injury. treatment was not very satisfactory, with In one case a two-year-old child recurrence being a common problem. underwent sclerotherapy for a venous These days ‘endovascular’ treatments malformation in the region of the ear. are the mainstay of management. In Post-operatively the child remained these treatments, physical or chemical deeply unconscious and made only A large venous malformation causing swelling of the materials are injected via the abnormal very slow progress. Review of the front of the right thigh in a 32-year-old male patient. The blood vessels, in order to stop the x-rays indicated that intra-arterial swelling had gradually increased in size over a long blood flow and destroy the vessels injection had probably arisen and period and was successfully treated using a course of ultrasound-guided injections of foamed sclerosant within the VM. affected the brain stem.

46 46

www.yourexpertwitness.co.uk

An elderly patient with a large venous malformation affecting much of the face, jaw, mouth and tongue was treated with a large volume of sclerosant foam. The dose was several times greater than the maximum recommended by the drug licensing agency. The tongue swelled considerably, remaining massively swollen for two weeks before the patient died.

Another case involved a patient with a large venous malformation affecting the face and lip. It had been injected with sclerosant foam on several occasions with significant reduction in size. A further session was done, but led to extensive destruction of skin and the tissues of the face.

Consent

In all those cases, reasonable care appears to have been taken to ensure that the sclerosant was injected into the intended target of the treatment. Despite that, severe damage occurred to the patients and it is likely that the possibility of a rare complication was not fully discussed with the patients concerned. Following the case of Montgomery v Lanarkshire Health Board (2015) it is clear that the risk of uncommon and severe adverse events should be considered with the patient before treatment is commenced.

Following that discussion a decision may be made to progress with the treatment. Failure to comply with this process may constitute substandard care. Surgeons are often unwilling to discuss severe and rare complications of treatment with their patients, but current advice from the General Medical Council indicates that it should form part of the consent process.

So, while endovascular treatments are invaluable in the management of VMs, the possibility of severe and extensive damage to the tissue well beyond the limits of the lesion may arise.

Patients should understand that these are uncommon but severe adverse events, and they should be explained during the consent process. q

www.yourexpertwitness.co.uk

47 47

48 48

www.yourexpertwitness.co.uk

Hearing loss continues to attract claims Consultant oto-rhino-laryngologist PROFESSOR CHRISTOPHER RAINE muses on the enduring presence of noise-induced hearing loss and explains some of the methodology for its diagnosis.

[

I HAVE BEEN preparing medico-legal reports for over 30 years and it surprises me that there is still a steady stream of requests to see clients with suspected noise-induced hearing loss (NIHL). I say surprised, in that noise as an industrial disease was recognised back in 1963.

In my neck of the woods – West Yorkshire – the wool weaving industry was the main source of employment and culprit for NIHL. Sadly, there has been a significant decline in the industry in the northern mill towns, with resultant unemployment. However, despite that decline there still appears to be a number of industries that fail to protect and supervise their employees in the use of hearing protection.

Noise exposure does not need to be ‘continuous’ – it can be ‘intermittent’ but at the end of the day it is cumulative. There is now, certainly, greater onus on both the claimant and defendant to confirm employment records, and also to go into greater detail regarding medical conditions that may be implicated in hearing conditions – especially those that are not controlled medically.

Noise induced hearing loss is usually described as ‘damage to the inner ear structures due to repeated exposure to loud noise over a period of time’. It occurs when the sensitive hair cells inside the cochlea become damaged, resulting in a permanent sensorineural hearing loss (SNHL).

Problems usually develop gradually, but are most severe following exposure to high-frequency sound.

The resulting hearing loss is centred mostly between the frequencies of 3 and 6 KHz. It is acknowledged that with prolonged exposure, frequencies on either side can also be affected. A SNHL may not always be NIHL. It can arise from other conditions, some of which are congenital, or from trauma, exposure to industrial chemicals or medical treatment for life threatening conditions, which have the side effect of oto-toxicity.

Asymmetrical hearing losses are occasionally seen, when there is unequal exposure to noise. The classic is ‘shooters ear’. Other, more mundane events occur in people using power tools, especially hammer drills when the sound is focused to one particular side. In a right-handed person the left ear is affected.

Sudden hearing loss is typically related to trauma and road traffic accidents are frequent enquiries. The onus is sieving out previous otological problems and assessing if ‘in all probability’ the incident date was relevant. Occasionally I have to ask my legal colleagues: what happens to those claimants who don't wear seat belts – who is at fault?

However, hearing loss and/or tinnitus can occur in the absence of demonstrable head injury. The acceleration/deceleration of the head can produce a concussional effect within the inner ear. Similarly, in vehicles fitted with airbags there can be a significant explosive shock.

While offering protection to the human body, they can result in damage to the inner ear and tinnitus.

A number of years ago we saw a number of claims related to call centre workers. Some systems would produce a very loud but short ‘click’ during the changeover of calls.

It usually takes a number of months before claims emerge for medical reports, so analysis of medical records, general practitioner

and hospital records is paramount. To present for a medico-legal appointment without documentation or not having reported alteration in hearing or tinnitus would be odd, to say the least. Some injuries can be significant and some patients don't always notice or report changes for a few weeks, so delay on reported onset is not unreasonable.

Tinnitus is a common complaint seen in everyday clinical practice.

In NIHL it can be associated with proven damage to the inner ear.

Some controversy is still around as to why claimants don’t report hearing loss or tinnitus while at work. It is not uncommon that hearing loss is a gradual process and there is an acceptance or lack of realisation of what is normal or abnormal. Many people say they thought it was due to the fact they were ‘getting older’.

In some cases the tinnitus mellows over time and I would not deem it to be a permanent feature unless it was present for at least 12 months. While there is no formal ‘cure’ for tinnitus, patients can obtain benefit from getting assessment from hearing therapists or specialised audiological scientists, who can offer tinnitus-retraining therapy and evaluate the need for hearing aids and masking devices.

In days gone by the ‘Black Book’ was used as a reference to judge and estimate the degree of hearing disability – namely Assessment of Hearing Disability. Guidelines for Medicolegal Practice: King, Lutman and Robinson.

In 2000, Coles, Lutman and Buffin produced useful and more stringent guidelines in Guidelines on the diagnosis of noise-induced hearing loss for medicolegal purposes. Here the task was to help distinguish between possibility and probability – the legal criterion being ‘more probable than not’.

It is argued that the amount of NIHL needed to qualify for that diagnosis is that which is reliably measurable and identifiable on the audiogram. Three criteria have to be fulfilled for a diagnosis of NIHL: • High-frequency hearing impairment • Potentially hazardous amount of noise exposure • Identifiable high-frequency audiometric notch or bulge Four modifying factors need to be considered. Calculations are based on what are termed ‘anchor points’ of 1 and 8 kHz. The measured hearing levels are compared to the modified age-related hearing levels for age and gender. However, over time and exposure all frequencies between 1 and 8 kHz can be affected. Recent guidelines by Lutman, Coles and Buffin, Guidelines for quantification of noise-induced hearing loss in a medicolegal context, have looked into the influence of losses at 1 and 8 kHz, as these anchor points can mask the underlying features of NIHL. Medical negligence cases can be the most challenging. Some issues relate to delayed diagnosis, inappropriate treatment or unplanned outcomes. In a few cases, a notes review clarifies and can offer a claimant an explanation, which sometimes has been lacking. q www.yourexpertwitness.co.uk

49 49

50 50

www.yourexpertwitness.co.uk

‘Timely’ treatment urged for eye patients

[

THE ROYAL COLLEGE OF OPHTHALMOLOGISTS (RCOphth) hosted its first ever Parliamentary reception on 2 November, when over 35 MPs and Peers met with its members to learn about the demand placed on hospital eye services and the impact on patients. MPs and Peers were asked to give their pledge to support equal access to timely treatment for all eye patients.

The SNP’s Dr Philippa Whitford MP, the keynote speaker, said: “When someone loses their sight it’s a terrible thing for the patient; it’s a strain on the family; it’s a strain on the community…it’s a real problem in our NHS and our social care services. If some of this is preventable by prompt treatment and can keep someone’s independence, then that makes a huge difference to people’s quality of life.”

RCOphth reported that review patients are not always being seen within a clinically safe time and cannot always be accommodated because of the lack of capacity in clinics. New patient data are reported by trusts to meet the 18-week referral-to-treatment target (RTT) by NHS England, but review patients whose appointments are postponed or cancelled are not recognised because they are not a mandatory target for reporting.

RCOphth president Professor Carrie MacEwen opened the reception by revealing the extent of the pressure on hospital eye services.

She said: “Successful treatments and changing demographics have put huge pressure on hospital eye services with a 40% increase in out-patients in 10 years, seeing nearly 10 million of the 100 million outpatient appointments in England alone and undertaking 5% of all surgery. All delivered by about 1,500 consultant ophthalmologists and their teams.”

The lack of safeguards, such as the absence of routine reporting on delayed appointments for review patients, means that hospital eye services are unable to quantify the extent of the problem or the harm coming to this vulnerable group.

By ensuring timely treatment for patients to help reduce preventable sight loss, a person’s ability to reach their full potential is increased and improves both mental and physical well-being, reducing the risk of falls and helping to maintain independent living. q

www.yourexpertwitness.co.uk

51 51

BUILDING, PROPERTY & CONSTRUCTION

EMPLOYMENT CONSULTANTS

ENERGY CONSULTANTS

FORENSIC ACCOUNTANCY

COMPUTER & MOBILE FORENSICS

52 52

www.yourexpertwitness.co.uk

FORENSIC SERVICES

INTERPRETERS & TRANSLATORS

MARINE SURVEYORS & CONSULTANTS

OFFSHORE ENGINEERING CONSULTANTS

WOOD & TIMBER

GEOTECHNICAL CONSULTANTS

HEALTH & SAFETY

www.yourexpertwitness.co.uk

53 53

MEDICO-LEGAL EXPERTS ACCIDENT & EMERGENCY

ANAESTHESIA

CARDIOTHORACIC SURGEONS BREAST SURGERY

DENTAL & ORTHODONTIC EXPERTS

CARDIOLOGISTS

54 54

www.yourexpertwitness.co.uk

LIVER SURGEONS

LUNG TOXICOLOGY

FORENSIC MEDICINE

MEDICAL PHOTOGRAPHY

GENERAL SURGEONS

OBSTETRICS & GYNAECOLOGY

HAND SURGEONS

www.yourexpertwitness.co.uk

55 55

OCCUPATIONAL THERAPY

ORTHOPAEDIC SURGEONS

ONCOLOGY

OPHTHALMIC SURGEONS

PATHOLOGY ORAL & MAXILLOFACIAL SURGEONS

56 56

www.yourexpertwitness.co.uk

PHARMACY & MEDICINES

PHYSICIANS

PLASTIC SURGEONS

PSYCHIATRISTS PSYCHOLOGISTS

www.yourexpertwitness.co.uk

57 57

RHEUMATOLOGISTS

SPEECH & LANGUAGE THERAPY

TOXICOLOGY

58 58

www.yourexpertwitness.co.uk

www.yourexpertwitness.co.uk

59 59

60 60

www.yourexpertwitness.co.uk