Your Expert Witness Issue 40 (1YWS)

www.yourexpertwitness.co.uk

1

2

www.yourexpertwitness.co.uk

www.yourexpertwitness.co.uk

3

contents IN THIS ISSUE 7

8

Opening Statement

NEWS 8 Brexit could make things harder for those injured while on the piste 8 Society attacks ‘wilful’ MoJ over tribunal fees 9 Campaigners to challenge environmental costs cap removal 9 Abuse inquiry hears expert evidence on migration schemes FORENSICS 10 Drug driving convictions challenged after lab arrests 10 Care home CCTV petition reaches milestone 11 CCTV: national strategy launched 11 First Investigatory Powers Commissioner takes office BUILDING & PROPERTY 12 Property agents’ bodies react to draft money laundering regulations 12 RICS launches new mandatory requirements on conflicts of interest 13 New suite of JCT contracts reflects updates and changes 13 CIC provides updated guidance on adjudication

11

FINANCE 14 Changes in the rules for buy-to-lets need serious consideration 14 Law Society warns over tax avoidance measures CULTURAL, RELIGIOUS & ETHNIC ISSUES 15 How does the practice of chastisement differ according to custom?

WILLS, LEGACIES & CHARITABLE BEQUESTS 16 New guidance sets out principals of legacy management 17 Help for those with failing sight 17 Scotland lags behind in legacy giving 18 ‘From Comradeship To Challenge’ 18 If you Will, we will 19 High death rate and good economic performance lead to legacy bonanza 19 Short breaks offer a normal life and boost self-confidence 19 Consortium welcomes new members 20 Vegfam – feeding the hungry without exploiting animals 20 Enhancing lives is the foundation of their work 21 Awareness campaign wins marketing award 21 Charity consortium welcomes Supreme Court decision 21 Legacies – the gift of life for threatened primates

14

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

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

1YWS

www.yourexpertwitness.co.uk

MEDICAL ISSUES 25 Medical Notes

37

NEWS 27 Fixed fee proposals welcomed – with reservations 27 Audit office examines negligence costs 29 Conference debates catastrophic injury issues 29 DoH publishes domestic abuse guidance 31 CQC publishes first review of inspections 31 Trust to be prosecuted over roof fall 33 Government consults on rapid redress scheme 33 GMC issues statement on doctors remaining on register ARTHROPLASTY 35 Surgery ‘rationing’ row rumbles on 35 ‘Bed blocking’ crisis stacks up future problems OBSTETRICS & GYNAECOLOGY 37 Anaesthesia implicated in cardiac arrest in pregnancy: but obesity is a factor NOISE INDUCED HEARING LOSS 38 New guidelines clarify hearing loss calculations 38 Become your own expert, NIHL lawyers advise

43

DENTAL NEGLIGENCE 39 GDC stance on tooth whitening gets European backing 40 The value of a screening report OPHTHALMOLOGY 43 Delayed follow-ups lead to sight loss, survey finds 43 Opticians’ duty of candour outlined PLASTIC SURGERY 44 It’s boom, then bust for cosmetic surgery PHYSICAL & PSYCHOLOGICAL EFFECTS OF SCARRING 45 Campaign supports people living with scars CARDIOLOGY 46 Electrical devices can affect pacemakers, US study finds 46 Heart patients to be warned of infection risk 47 Mother receives compensation for heart op error – after 10-year fight

51

GASTROENTEROLOGY 48 Gastroenterologists welcome NCEPOD report PSYCHIATRIC & PSYCHOLOGICAL ISSUES 49 Somatoform disorders in personal injury claims 51 Psychologists respond to BBC mental health deaths revelation 51 Why footballers don’t talk about their mental health PAIN 52 Global Year Against Pain After Surgery EXPERT CLASSIFIED 53 Expert Witness classified listings 55 Medico-legal classified listings www.yourexpertwitness.co.uk

5

6

www.yourexpertwitness.co.uk

Opening Statement [

YOU CAN’T GET AWAY from Brexit this month. It has just been announced that PM Theresa May will send ‘a letter’ to EU President Donald Tusk on 29 March triggering Article 50 and signalling the UK’s exit from the union. Much has been written about the consequences of withdrawal, not least the economic storm that was anticipated following the vote and which did not materialise.

• One issue most of us have not considered is the pursuance of damages for injuries sustained while skiing – yes, skiing. An expert on aviation and travel law at leading firm Stewarts Law has realised that the UK’s cessation from the EU will negate the privileges of bringing actions for damages in English courts, rather than having to travel abroad. In his informative exposition on the subject, originally devised for the Law Society Gazette, he does not reveal whether he has been injured while skiing – or, indeed, whether he is a keen skier.

• The removal of safeguards for those looking to bring others to book is the subject of a couple of actions by lawyers looking to safeguard the public interest. On 27 February the cap on costs for individuals and organisations bringing to court cases under the Aarhus Convention was revoked, meaning costs could be escalated without notice. Three environmental campaigning organisations are taking the government to court over the issue.

• At the same time the Law Society has made clear its displeasure at the review of fees for bringing a case before an employment tribunal. The MoJ claimed the hike in fees did not ‘prevent’ people from bringing claims, while admitting that it ‘discouraged’ them from taking action. Sir Humphrey is alive and well, it seems, and has been transferred to the MoJ. • One case that concluded with no winners was the drawn-out affair regarding the legacy of Melita Jackson. In this unfortunate case the lady was adamant that her estranged daughter would inherit nothing from her estate and left her legacy to three animal charities. After protracted legal wrangling the Supreme Court overturned an Appeal Court decision that ruled the daughter was entitles to a substantial settlement, despite the lady’s express wishes.

The Appeal Court relied on a precedent insisting that estates must make ‘adequate provision’ for dependants – despite the fact that, as a self-sufficient adult, the daughter was not in any way a dependant.

• The story illustrates the important role that legacies provide for many leading charities. Each year the Legacy Monitor Consortium – part of Legacy Foresight – issues a report on legacy giving based on results from its member charities. The figures for last year make for ambivalent reading. On the one hand income from legacies increased by 10% last year, while the actual number of legacies fell. An increase in the death rate is cited as a factor – although one would expect that would lead to an increase in bequests.

• As has been illustrated in this publication in the past, charities are particularly vulnerable to financial misdeeds. A big worry these days is the risk of money laundering. New regulations from HM Treasury have focused the mind of all those involved in the handling of large amounts of money on behalf of clients – not least lawyers and property agents. Letting agents are not included in the regulations, to the dismay of their professional association.

• Conflict of interest among property agents is, however, an area that is subject to new regulation. The RICS is to ban the practice of ‘double dipping’ – whereby the same agent acts for the seller and buyer in a transaction. Sounds a bit like having your cake and eating it. Which brings us back to Brexit… q

Ian Wild

Ian Wild, Director of Business Development Your Expert Witness

www.yourexpertwitness.co.uk

7

Brexit could make things harder for those injured while on the piste [

ONE OF THE more esoteric issues surrounding the UK’s exit from the EU was brought to light by an associate at Stewarts Law in London. Christopher Deacon specialises in aviation and travel law and in an article for the Law Society Gazette raised the spectre of future difficulties gaining compensation for skiing accidents and injuries.

He writes: “Victims of serious injury from accidents on the slopes are currently protected in a number of different ways by the UK’s membership of the EU. Ski collisions are routinely described as ‘road traffic accidents on the piste’, with victims of serious accidents often benefitting hugely from early rehabilitation and other high-quality medical interventions; the loss of these protections is therefore no small thing.”

He explained the provisions of the Brussels Recast Regulation, whereby a UK resident can bring a claim against an insurer in another country for injuries sustained and caused there (Article 11.1[b]).

That right applies even where English law does not apply.

Deacon writes: “While English law may not recognise a direct right of action following sporting accidents, many of the civil law systems in Europe do, including in France, the Netherlands and Belgium.”

Bringing an action in the English court means the injured person

does not have to travel abroad to pursue the claim while suffering what could be very serious injury. A spin-off is the prevalence of experts in English courts.

Says Deacon: “A further advantage of litigating at home is that the UK courts are typically much more willing than other European jurisdictions to allow a wide range of expert reports to prove those lifelong losses.”

The consequences of losing that connect with European jurisdictions could be catastrophic for claimants.

He continued: “So, unless our government can be persuaded to pass new legislation, this will mean UK-based claimants navigating their way through a foreign legal system, of which there is enormous divergence throughout the EU. “This will limit access to the early interim funding which so often plays a vital role in maximising the rehabilitation of individuals who have suffered life-changing injuries; victims may find this change means they miss the narrow window of opportunity to get treatment that could significantly improve long-term outcomes. It will also leave UK taxpayers bearing the cost of caring for those with seriously disabling injuries.”

An alternative could be the Lugarno Convention, which applied in England before 2010.

Deacon concludes: “Those litigating serious personal injury cases after we’ve left the EU are going to need to be well-qualified in navigating multi-jurisdictional legal complexities and international treaties if they’re to secure the best outcomes for their clients.” q

Society attacks ‘wilful’ MoJ over tribunal fees [

THE LAW SOCIETY has attacked a Ministry of Justice claim that the level of fees for employment tribunals has not ‘prevented’ people from bringing cases, branding it as ‘nothing short of a wilful attempt by the Ministry of Justice to ignore the tens of thousands of people left unable to assert their workplace rights’.

Its president Robert Bourns said: “In the face of plummeting numbers of cases going to the tribunal, falling settlement rates and thousands of people saying they could not take their cases to the tribunal due to high fees, only by being wilfully blind can the government claim 'no evidence' that fees are stopping people enforcing their rights.”

Figures accepted by the MoJ identified an estimated 14,000 people per year who unsuccessfully tried conciliation for their employment dispute but were then unable to take their case to the tribunal due to the fees.

“With employment tribunal cases having fallen by around 70% immediately after the fees were introduced, these 14,000 people are the tip of the iceberg,” said Robert Bourns.

He was speaking following a consultation on the review of the fees, published at the end of January.

“If the government is genuine about workers being able to defend their rights at work it must restore access to the employment tribunal. That means removing oppressive fees, to ensure that justice is there for those who need it,” he said. q

8

www.yourexpertwitness.co.uk

Campaigners to challenge environmental costs cap removal [

TWO ENVIRONMENTAL CHARITIES – Friends of the Earth and the RSPB – and the environmental law firm ClientEarth have started legal proceedings against the Lord Chancellor and Secretary of State for Justice to challenge what they believe to be unlawful new costs rules for environmental cases.

The new rules, brought in on 28 February, weaken financial protection for people bringing a case, meaning they face unspecified legal costs in return for going to court to protect the environment.

A costs cap of £5,000 for claims brought by individuals and £10,000 for those brought by organisations and public bodies, introduced in 2013, has been lifted for environmental judicial reviews brought under the Aarhus Convention in England and Wales.

Judges will be able to increase the costs cap at any stage, making it impossible to know how much a case will cost from the start, said ClientEarth.

CEO James Thornton said: “The new rules spell disaster for the environment. With no certainty on costs, who will put their finances – perhaps even their house – at risk to bring a case? Individuals and campaigners need financial certainty before they bring a case in the public interest. After Brexit this will become even more important, because the EU won’t be there to make sure our government is following its own environmental laws.”

The House of Lords statutory instruments committee, which reviewed

Abuse inquiry hears expert evidence on migration schemes

the rules, concluded that: “Although the Ministry of Justice states that its policy intention is to introduce greater certainty into the regime, the strongly negative response to consultation and the submission received indicate the reverse outcome and that, as a result of the increased uncertainty introduced by these changes, people with a genuine complaint will be discouraged from pursuing it in the courts.”

The finding supports the view of campaigners that the government’s new rules will make it prohibitively difficult for individuals and environmental groups to bring environmental cases of wide public interest. This includes cases like ClientEarth’s challenge against the UK government over toxic air pollution.

Not only is it a huge disincentive to bringing a public interest environmental case, the three organisations believe it also breaches the law.

In a joint statement they said: “Charities and NGOs are the main way people can mount an effective challenge to government decisions. We represent lots of concerned individuals who have chosen to pool their resources with us so we can defend nature on their behalf. We are an alliance of thousands of individual citizens who would otherwise lack the means and resources to take an issue to court. Access to justice, on equal terms, is everyone’s right.”

In a statement, the Ministry of Justice said: “The cost of bringing environmental challenges must not be prohibitively expensive and our changes will ensure that individuals are not expected to pay legal costs above their means. Legal aid remains available for these cases.”

The High Court is considering the application and a response is expected in the coming months. q

[

AT THE END of February the Independent Inquiry into Child Sexual Abuse (IICSA) began hearing evidence in the British child migration programmes. The child migration programmes are a case study which is part of the inquiry’s Protection of Children Outside the United Kingdom investigation.

The child migration programmes were large-scale schemes in which thousands of children, many of them in the care of the state, were systematically and permanently migrated to parts of the British Empire by various institutions in England and Wales, with the knowledge and approval of the British Government. Most were sent to Canada, Australia, New Zealand and what was then Southern Rhodesia – modern-day Zimbabwe. In 2010, the UK Government issued an apology for its role in the child migration programmes.

The first day of public hearings, on 27 February, saw evidence from the two expert witnesses appointed: Professor Gordon Lynch, of the University of Kent and Professor Stephen Constantine from the University of Lancaster.

The two academics had already co-authored a substantial initial report for the inquiry on the child migration schemes and will continue to provide other evidence and reports for the inquiry as it undertakes public hearings as part of this investigation until summer 2017.

The inquiry will consider former child migrants’ experiences of sexual abuse, whether organisations involved failed in their duty of care at the time, and whether subsequent organisational responses have been adequate. With a substantial body of archival material to be reviewed from twenty organisations, this investigation will be the most substantial inquiry into these child migration schemes to have been undertaken in the United Kingdom. q www.yourexpertwitness.co.uk

9

Drug driving convictions challenged after lab arrests [A SCANDAL HAS arisen involving a

company providing blood testing services after two workers from its Manchester lab were bailed following allegations that data was falsified.

The company, Randox Testing Services (RTS), provides testing services to police forces across the UK. The affair came to light after the results of a test carried out by Randox were challenged by lawyer Nick Freeman, dubbed by the press ‘Mr Loophole’. Mr Freeman’s client, a 26-yearold Chester man, had been arrested in December 2015 on suspicion of drug driving.

He gave a blood sample which was sent to Randox for analysis.

The results claimed to show the driver was not only over the prescribed limit for cannabis, but his blood also tested positive for traces of cocaine and another drug, which the defendant disputed.

Mr Freeman said: “We asked our expert to look at the Randox report. He identified a number of analytical issues that affected the reliability of the results.”

The case was dropped in February and the Crown Prosecution Service (CPS) is now reviewing dozens of cases.

A CPS spokesperson said: “We are working with the Home Office, police and the Office of the Forensic Science Regulator to assess the impact of the testing failure at Randox Testing Services.”

Nick Freeman added: “Every drug drive case where a conviction has hinged on data from Randox must, in my view, be reviewed. This current police investigation will have massive implications for drug drivers who have been convicted on the strength of a Randox bloodsample test.”

The National Police Chiefs’ Council lead for forensic science, Chief Constable Debbie Simpson commented: “We have been made aware of a quality failure with Randox Testing Services, which is currently being investigated, and a criminal inquiry has been launched

by Greater Manchester Police. Randox has provided each force with a list of cases that could have been affected. Working in partnership with the Crown Prosecution Service, we have provided guidance to forces so they are able to review each case to determine if compromised data played a part in prosecution and the CPS will then take appropriate action in any cases identified.”

In a statement issued on 16 March, the company said: “RTS Manchester identified a quality incident concerning the manipulation of quality control data. This was immediately reported to the police, the relevant authorities and affected customers.

“Our internal investigation has covered the period between June 2014 to January 2017 in which we reviewed sample analysis of blood, hair and urine for drugs of abuse in submissions.

Our initial internal investigation prioritised those samples which were reported as positive for the presence of drugs and…we subsequently turned our attention to results reported as negative for the presence of drugs.

“A complete review of all negative nonforensic results has now been completed and only two customers were found to be affected, those customers have been contacted directly and informed.” q

Care home CCTV petition reaches milestone [ A SECOND Government Petition to have CCTV installed in care

homes closes on 14 April. The petition was launched by former Big Brother contestant Jayne Connery in response to failings she found at care homes at which her mother was resident.

She told the press: “We need to have CCTV placed in these dementia care homes and it needs to be overt cameras. Putting cameras in covertly causes trust to break down.”

In January the petition reached the 10,000 signatories needed to elicit a response from the government.

The response read: “The government does not object to the use of CCTV cameras in care homes on a case by case basis. Care home owners should consult with and seek the consent of residents and their families on their use.”

A similar petition initiated by Lisa Smith of Rochdale, which closed in June last year, elicited the identical response.

The Care Quality Commission (CQC) publishes guidance on the installation and use of cameras in homes.

The CQC says: “Whether to use surveillance is a decision for care providers to make in consultation with the people who use their services, and with families, carers, trade unions and staff. Surveillance in care services must be lawful, fair and proportionate – and it must be used for purposes that support the delivery of safe, effective, compassionate and high-quality care.” q

10 10

www.yourexpertwitness.co.uk

CCTV: national strategy launched [ON 14 MARCH the Surveillance Camera Commissioner, Tony Porter, launched a national

surveillance camera strategy for England and Wales, to help keep people safe in public places and respect their right to privacy.

The strategy aims to provide direction and leadership in the surveillance camera community, to enable system operators to understand good and best practice and their legal obligations – such as those contained in the Protection of Freedoms Act, Data Protection Act and Private Security Industry Act. In a statement, the commissioner’s office said: “It is the commissioner’s strategic vision to ensure the public are assured that any use of surveillance camera systems in a public place helps to protect and keep them safe, while respecting the individual’s right to privacy. That assurance is based upon deployment which is proportionate to a legitimate purpose, and transparency which demonstrates compliance with best and good practice and relevant legal obligations.

“The strategy aligns closely to the Home Office responsibilities to keep the UK safe from the threat of terrorism and to reduce and prevent crime and ensure people feel safe in their homes and communities.”

Tony Porter commented: “After a year of hard work I’m delighted to be able to launch this strategy. It’s a strategy that is far reaching, touching on many areas of surveillance camera use – police and local authorities, installers and manufacturers, training providers and regulators – and of course how the use of surveillance cameras impacts members of the public.

“The responses to the consultation on the draft show that this strategy is extremely well supported, as does the number of organisations that have written to me to show their support. I look forward to delivering on this for the next three years, ensuring that where surveillance cameras are used they keep people safe while protecting their right to privacy.” q

First Investigatory Powers Commissioner takes office [ IN MARCH the Prime Minister approved the appointment

of Lord Justice Fulford as the first Investigatory Powers Commissioner (IPC), for a three-year term. The role of the IPC is to authorise and oversee the use of investigatory powers by public authorities and he is appointed under Section 227 of the Investigatory Powers Act 2016.

Theresa May said: “I’m pleased to announce the appointment of Lord Justice Fulford as the first Investigatory Powers Commissioner. He brings a wealth of experience in the judiciary and expertise in matters of law which will be crucial to his vital role scrutinising the use of investigatory powers, as part of a worldleading oversight regime.”

The Rt Hon Sir Adrian Fulford qualified as a barrister in 1978 and took Silk in 1994. He was appointed a Recorder of the Crown Court in 1995 and a High Court Judge of the Queen’s Bench Division in 2002.

For nine years from 2003 he was one of the 18 judges of the International Criminal Court. He was appointed as a Lord Justice of Appeal on 10 May 2013.

From January 2016 he became the Senior Presiding Judge for England and Wales, having been deputy for 12 months previously.

He is currently the Judge in Charge of IT and leads for the judiciary on HM Courts and Tribunals Service reform.

While holding the IPC appointment Sir Adrian will remain a Judge of the Court of Appeal. q www.yourexpertwitness.co.uk

11 11

Property agents’ bodies react to draft money laundering regulations [NAEA PROPERTYMARK (formerly the National Association of

Estate Agents) has responded to the release by HM Treasury of the draft Money Laundering Regulations 2017 with a call for greater clarity on a number of issues. The representative body for property agents commented that, while it is positive to have the draft regulations, there are still unanswered questions on which they will be seeking guidance.

In particular there is a need for clarification regarding the announcement that purchasers will be included in the application of Customer Due Diligence (CDD), meaning additional checks will need to be made by sales agents and auctioneers. That will be complicated, NAEA Propertymark says, by the fact that agents do not always have a face-to-face relationship with buyers.

Greater clarity is needed regarding: • At what point within that context does a buyer become a buyer?

• How can CDD be carried out where agents are dealing with • buyers remotely?

• How checks can practically be done on auction buyers, given that • sale is agreed at the point that the gavel comes down?

The consultation on the draft legislation runs until 12 April and the regulations are due to come into force on 26 June.

Chief executive Mark Hayward commented: “It’s good news that the consultation on money laundering has finally appeared. When the legislation comes into force, it’s vital the sector acts to implement the changes. The Government has announced that purchasers are now included in the application of customer due diligence, so additional checks will need to be made by sales agents and auctioneers, which will

be complicated by the fact that buyers are sometimes at arm’s length and there’s not necessarily a face to face relationship. However, further clarity will be required as to at what point the purchaser becomes a purchaser, and this is an issue we will be seeking guidance on.”

The Treasury has stated that it does not intend to include letting activity in the regulations, a fact which NAEA Propertymark’s sister organisation ARLA Propertymark described as ‘disappointing’.

ARLA Propertymark’s chief executive declared: “We are disappointed the Government has chosen not to include lettings activity within the Money Laundering Regulations 2017. The risk is that money laundering activity will transfer from the sales sector, due to the increased powers within the new regulation, into the lettings sector which remains unregulated.

“However, within the context of the recently increased legislative burden on letting agents, coupled with the shock announcement to ban letting agent fees in the Autumn Statement, we understand why the Government has chosen not to impose these requirements at this critical juncture.” q

RICS launches new mandatory requirements on conflicts of interest [IN APRIL the RICS will be publishing a UK-specific professional

statement on conflict of interest for the commercial property investment market. It will include the banning of the controversial practice of dual agency – known colloquially as ‘double-dipping’ – whereby agents act for both sides in an instruction.

It follows the publication on 14 March of a new global professional statement on conflicts of interest, tightening up requirements for professionals and regulated firms working in land, property, construction and infrastructure.

Both standards will be effective from 1 January next year.

The new global professional statement was launched at MIPIM – a major international real estate exhibition and conference in Cannes – having been developed as the result of an extensive consultation that saw industry professionals and regulatory experts offer their views.

On a global level, multiple agency relationships will now only be permissible with informed consent and, the professional statement introduces better processes for managing that consent and promoting transparency. The professional statement will also offer clearer guidance on confidentiality, building greater understanding of where the information gained during a transaction should not be used.

Following launch of the global statement and the UK-specific statement, RICS will seek to review the practice of dual agency outside of the UK market, including the Americas, and consult on the requirement for further market-specific standards. Some of the best-known commercial property firms have already indicated their support for the new standards. q

12 12

www.yourexpertwitness.co.uk

New suite of JCT contracts reflects updates and changes [ IN NOVEMBER last year

the Joint Contracts Tribunal (JCT) introduced a new suite of contracts, which include a number of important updates.

Build UK, the body that represents the construction industry, has a representation on the JCT to ‘ensure that the drafting and updating of the contracts remains balanced, fair and reliable for all parties within the industry’.

It commented: “The new 2016 suite fully incorporates recent legislative changes as well as updates to reflect current initiatives in fair payment and Building Information Modelling (BIM).”

The substantive changes depend on the specific contract, but in general they include: • Incorporation of changes to • the Construction (Design and • Management) Regulations 2015 • Introduction of specific contract • options in relation to BIM and its • use in projects • Reflecting the Construction • Supply Chain Payment Charter’s • commitment to fair payment • through the supply chain • Inclusion of the Public Contract • Regulations 2015 The JCT contract families which now have new 2016 versions include Standard Building, Design and Build and Minor Works Building. q

CIC provides updated guidance on adjudication [

THE CONSTRUCTION INDUSTRY COUNCIL (CIC) has published a new Users’ Guide to Adjudication, which replaces the previous guide from the Construction Umbrella Bodies Adjudication Task Group, produced in 2003.

Since its introduction in the late 1990s, adjudication has come to dominate alternative dispute resolution in the construction industry. Adjudication was envisaged as a process that construction companies could use with or without external professional assistance.

Over the years many novice users turned to the original Users’ Guide to Adjudication, to understand how adjudication works and to decide if it was a process that would help them.

The hope is that the new guide will assist both those who wish to take a dispute to adjudication and those who have received a notice of adjudication.

Niall Lawless, chair of the CIC adjudicator nominating body (ANB) management board, said: “ANBs are often asked to provide information on adjudication. Indeed, as adjudicator I have been asked by one of the parties to explain what should they do next. Whereas it is not in the role of the adjudicator to advise parties, I have referred parties to the CIC Users’ Guide to Adjudication.

“The CIC ANB management board consulted stakeholders through an industrywide survey and other means; and important feedback was that whereas the Users’ Guide to Adjudication April 2003 was still frequently used, it should be updated to reflect the development of adjudication and new law.

The new Users’ Guide to Adjudication will not only assist novice users but, as it contains ‘consolidated legislation’, it will also be a resource benefitting experienced practitioners.

The guide is available to download free from CIC’s website at www.cic.org.uk. q

www.yourexpertwitness.co.uk

13 13

Changes in the rules for buy-to-lets need serious consideration

By Forensic Accountant DEREK WILLIAMSON of Goddards Accountants

[

SOLICITORS ARE CONSTANTLY being asked to carry out the legal work on purchases and sales of properties. However, with the new 3% buy-to-let Stamp Duty surcharge and changes to the tax laws, they need to be asking a series of questions:

• If it is a buy-to-let and not for personal occupation, why is it not being bought through a limited company? Changes to the tax laws will result in individuals getting only 20% tax relief on the interest expenses. Depending upon their other income, they could be paying tax of 40% or 45% on their profits.

• If it is a buy-to-let, have they taken out insurance against non-payment of the mortgage? Again, for a limited company those expenses are totally deductible.

• Do they wish to spread future tax liabilities? If the property is in their own name their options are limited. If in a limited company they could make other family members shareholders and so reduce or even eliminate Inheritance Tax. • ‘But I need to give a personal guarantee in the case of a company!’ However, if buying as an individual they are guaranteeing the debt anyway, so why not save the tax.

We all know the case of the solicitor who acted for a client in the legitimate purchase of four properties: one to live in and three as buy-to-lets. On his death his children sued the solicitor for malpractice on the basis that he had never asked the client if he had a will (he died intestate). The children were successful in their case.

With the change in tax law over Stamp Duty and allowable expenses of buy-tolets there may be an attempt by property owners to sue their solicitors for failing to recommend using limited companies for buy-to-lets and for not advising clients on the options available. q

Law Society warns over tax avoidance measures [

TAX

PROPOSALS TO SANCTION professionals who ‘enable’ tax avoidance schemes that are later overturned by HM Revenue and Customs (HMRC) have drawn a further warning from the Law Society that a desire to tackle abuse of the tax system must not result in solicitors being penalised for advising clients in good faith on their tax liability.

“The Law Society understands the government’s desire to prevent people abusing the tax system through tax evasion and aggressive tax avoidance,” the society’s president Robert Bourns said.

“However, everyone loses if these measures stop taxpayers receiving proper legal advice on their tax obligations. Our experts have had a productive and on-going dialogue with HMRC, and we will continue to advocate for a final law that ensures access to legal advice is properly protected.”

In its policy paper on the Budget, the Treasury explained: “As announced at Spring Budget 2017, the government will legislate in the Finance Bill 2017 to ensure that promoters of tax avoidance schemes can’t circumvent the Promoters of Tax Avoidance Schemes (POTAS) regime by re-organising their business by either sharing control of a promoting business or putting a person or persons between themselves and the promoting business. This will ensure HMRC can apply the POTAS regime as intended.” q

CE

AN AVOID

14 14

www.yourexpertwitness.co.uk

How does the practice of chastisement differ according to custom in the East and the West?

By DR BASHIR QURESHI FRCGP FRCPCH Hon FFSRH-RCOG AFOM-RCP Hon MAPHA-USA Hon FRSPH • Expert Witness in Cultural, Religious & Ethnic issues in Litigation • Expert Witness in GP Clinical Negligence • Author: Transcultural Medicine – Dealing with patients from • different cultures.

Chastisement (chăs-tīz’mənt, chăs’tĭz-)

noun; severe criticism, a rebuke or strong reprimand; corporal punishment or a beating.

[THROUGHOUT THE WORLD children are disciplined – verbally,

physically or both – by their parents, to teach the child to avoid bad behaviour and persuade them to be good citizens. It is well intended: akin to the ‘double doctrine’ theory in philosophy which says that it is acceptable, for example, to kill four hijackers to save 40 hostages.

Sometimes a verbal warning is ignored by a child or adult and a physical punishment or imprisonment is deemed necessary. Even in prisons lessens to adapt good behaviour are given.

Western customs

Physical punishment was used by some parents, especially the father, in Britain in the past; but is now forbidden and in most cases has been made illegal. It is not acceptable as it is considered child abuse. Teachers and social workers, representing the state, may intervene and parents can be taken to court. Every child belongs to parents and the state equally.

In school a misbehaving child can be punished by isolating them in a room for a few hours or longer, akin to a prison but under the supervision of a teacher or welfare assistant. On release from detention, the teacher reminds the child to adopt good behaviour. Often it works; but not always.

Sometimes a persistently badly behaved child is expelled from the school for some period of time.

Eastern customs

In Eastern countries the child belongs to parents only and not to the state. The police may intervene if a crime has been reported to them.

For example, in India, among all religions, first verbal and then physical punishment is given by parents or teachers. It is accepted by the authorities because the intentions of parents are good and the results for the child are largely beneficial. Moreover, the extended family supervises the parents – especially young parents – in exercising the practice: they do not let them exceed acceptable limits.

If a child misbehaves the mother complains to the father, who disciplines the child – within limits and in the presence of the mother, who can stop him if he exceeds those limits. The child often promises to become a good child for fear of physical punishment, which is only given after a verbal telling off.

Intentions are good and such punishment is aimed at persuading or forcing children to adopt good behaviour. The family, society and country benefit by well-behaved workers – who can pay taxes! It is also aimed at keeping up the good name and dignity of the family.

All children hate the practice and remain angry when they become adults. Nevertheless; when they become parents they repeat the custom with their own children, in all good faith. Some children grow up to hate the practice and tell their own father off when they become adults. They may even take revenge by suing them where possible, for instance if they visit Britain. However, the majority of Eastern adults accept their childhood memories with a pinch of salt and keep respecting as well as caring for their parents in their old age.

A number of methods of physical punishment have been in use for a long time and have regional as well as cultural or religious variations.

Most commonly a father or teacher may slap a child firmly or halfheartedly so as to frighten him or her and not to cause any physical harm. Other, more severe forms are used in some places.

Those are some of the cultural and religious differences in chastisement between an Eastern country and the UK. In both cases they are well intentioned, in order to achieve good results in the long run.

I have written reports for British courts when, usually, a girl aged 16 or over is sent to a British school or college by her parents and sues them, especially the father, for chastisement.

As I am an impartial expert witness in cultural, religious and ethnic issues in litigation, either my report is sufficient for solicitors of both the claimant and defendant and the case gets withdrawn from court, or both solicitors have a personal meeting or virtual conference with me.

I answer all their questions impartially; both then pay my reasonable fee promptly and I do not have to go to court. I am willing to go but have not been called by any court yet in such a case. I become a Single Joint Expert because I am the only one practising in the UK as an impartial expert witness in cultural, religious and ethnic issues in litigation. q www.yourexpertwitness.co.uk

15 15

The much-anticipated guidance on good practice for legacy professionals has now been published, meaning there should be much less cynicism from some quarters regarding the work of charities. The importance of legacies continues undiminished, with figures from Legacy Foresight showing a rise in incomes last year. Other research shows an imbalance in legacy giving in the regions of the UK, prompting Remember A Charity to take the message to solicitors in Scotland. That same organisation is celebrating renewed success – and a marketing award!

New guidance sets out principals of legacy management [

ON 24 FEBRUARY the Institute of Legacy Management (ILM) launched its Good Practice Guidance, aimed at helping to ensure that donors who leave gifts in wills to charities, together with their families and friends, are treated properly by the professionals tasked with administering those legacies. The guidance is the culmination of almost a year of consultation with both ILM’s members and others working in the sector.

16 16

www.yourexpertwitness.co.uk

Explaining the guidance, the institute says: “ILM and our members share a vision to ensure every generous donor’s final wishes achieve their greatest potential. Legacy management is not an end in itself; it’s an opportunity to ensure the final wishes of generous donors help to create the positive change they wanted to see in the world.”

Donors, the ILM says, have placed their trust in legacy professionals and it is their duty to fulfil their final wishes in a timely manner,

optimising the ‘positive impact’ that legacies have for charities.

The Good Practice Guidance establishes a set of five core principles for legacy professionals, reflecting the key challenges they face and outlining an ethical framework for the sector. They are set out under the headings: Sensitivity, Transparency, Integrity, Collaboration and Informed.

In addition, the detailed Guidance Notes set out ways in which the principles can be applied in different areas.

The ILM says: “We developed the guidance with a taskforce of professionals from across the legacy management field, and in collaboration with its members, to share best practice in areas ranging from communication with lay executors, solicitors and other charity beneficiaries, to tax considerations and possible claims against an estate.”

The guidance, however, is not set in stone and is expected to be developed with experience.

“We want the guidance to evolve over time,” the ILM says, adding that it welcomes feedback from members.

The Institute of Legacy Management is the membership body for legacy professionals – those responsible for the successful and sensitive administration of donors’ final gifts to charitable organisations.

Established in 1999 to provide individual legacy professionals with a network of support and dedicated training services, it now represents and supports more than 500 individuals working in over 350 charities, not-for-profit organisations and associated professions.

According to the ILM, legacy professionals are responsible for over £2.4bn of charitable income each year: income that many charitable organisations rely on for their survival. q

The Good Practice Guidance will form the basis for discussion at the ILM’s Annual Conference on 12 May. Exploring the five principles outlined in the guidance document, the day will feature a mix of expert speakers, interactive sessions and shared learning.

According to the institute: “Looking at areas such as addressing the taboo around death and dying, new rules around data protection and donor records, the relationship between the legal and charity sectors as well as a legal update, we hope the day will contain items of interest for every one of our delegates, whether experienced legacy managers, private practice solicitors or charity staff for whom legacy management is but one of a number of duties.”

Scotland lags behind in legacy giving [

LEGACY GIVING UMBRELLA BODY Remember A Charity took its message of persuading solicitors to raise the issue with clients when writing their will North of the Border in February at an event hosted by the Law Society of Scotland.

The event was an opportunity for legal and charity sector leaders in Scotland to hear the findings of research carried out by the Behavioural Insights Team and the University of Bristol, which found that Scotland is behind other UK nations in terms of legacy giving.

The research found a disconnect between the 40% of people in Scotland claiming they are open to leaving a charitable gift and the 3.8% that do so. That creates a gap which could be bridged by more legal professionals raising awareness among clients.

Research from Legacy Foresight indicates that Scotland only accounts for 6% of gifts in wills, despite accounting for 9% of deaths in mainland UK. In addition, more than 6% of people in England and Wales who die leave a gift, compared to the 3.8% in Scotland.

Rob Cope, director of Remember A Charity, believes charities and solicitors need to work together to make it the norm for people to leave a gift in their will.

“One of the biggest challenges for charities is lack of salience amongst the will-writing public,” he said. “There are also widelyheld misconceptions, with many believing that gifts have to be large amounts or that the donor has to choose between giving to their family or their favourite charities.

“The reality, however, is a very different. Even a small amount can make an enormous difference and the donor should always be encouraged to protect their loved ones first – and then consider their favourite charities.” q

Help for those with failing sight

[

FAILING EYESIGHT is nothing short of a personal catastrophe.

Do you have a family member, friend or neighbour who is gradually losing their sight?

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

The National Federation of the Blind of the UK (NFBUK) keeps its members in touch with general information, help and updates on what’s going on.

The charity produces bi-monthly news magazines and circulars in audio, braille or electronically, which members can read independently. It also encourages blind and partially sighted people to play a fuller part in society. q • For further information contact NFBUK on 01924 291313, email admin@nfbuk.org or vist www.nfbuk.org. www.yourexpertwitness.co.uk

17 17

‘From Comradeship To Challenge’

[

FOUNDED IN 1920 for the ‘comfort, cheer and entertainment’ of servicemen injured in WWI, The Not Forgotten Association is a unique, highly personalised charity which supports serving personnel who are wounded, injured or sick and veterans of all ages with a disability, illness or infirmity.

Anyone of any age who has served in any of the Armed Services or the Merchant Navy, in the regular or reserve forces, may be eligible for the charity’s help, irrespective of whether their health problems arose during service or subsequently.

Each year some 10,000 men and women benefit from a busy and varied programme of outings, holidays, concerts and Royal parties, as well as the provision of televisions and TV licences. Every event and activity is intended to bring hope, happiness and friendship – to enhance wellbeing, restore confidence, boost morale and improve the chances of the individual and their family enjoying a better life.

The range of support given by the association is summed up in its motto: ‘From Comradeship To Challenge’.

As a small charity, without the resources for formal fundraising, the NFA relies totally on the goodwill and generosity of those who recognise the value of its work. 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

18 18

www.yourexpertwitness.co.uk

High death rate and good economic performance lead to legacy bonanza [ LAST YEAR SAW a significant rise in

legacy income for charities – more than 10% up on 2015, according to new figures from the Legacy Monitor Consortium, which comprises leading charities and acts as a benchmark for legacy giving.

In a statement, Legacy Foresight said: “In the year to December 2016 our 83 Legacy Monitor Consortium members received £1.43bn in legacy income – up 10% on the previous year. The continued strong growth in income can be attributed to two factors: a higher-than-expected number of deaths and a better-than-feared economic performance.”

In the same period, however, the actual number of bequests dipped by 0.8% to 52,300.

The rise in income is partially attributable, sadly, to a smaller than anticipated fall in the death rate in the spring.

The consortium’s quarterly Bulletin states: “After a significant spike in winter 2014/15, deaths were expected to drop back sharply in 2016. They did drop – but not nearly as much as predicted. Annual deaths now stand at 600,000; 9% higher

than at the start of the decade.

“The rising death rate has had a significant impact on legacy incomes in recent years, particularly in 2015 and 2016.”

The rise in income has been forecast to continue or even accelerate, as there can be a delay of up to six months before charities are notified of a bequest. In November last year there were 52,600 deaths, an increase of 6,000 from November 2015 and 13% higher than the yearly average.

A second factor, and a more welcome

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.

”

one, is the better performance of the UK economy than expected.

The Bulletin continued: “After the Brexit vote most commentators feared a substantial and immediate plunge in the UK economy. In fact, the economy is currently performing well because of Brexit.

Since the referendum UK house prices have seen a small gain of 2.5%, albeit much slower than in 2014 and 2015.

“More importantly, UK share prices have recovered strongly, up 11% since July, thanks to a rise in British exports, made cheaper by the 10% fall in the value of Sterling. The buoyant economy is helping to drive up residual legacy values, which now stand at £58,400.”

Legacy Monitor is a research programme, set up in 2008 to analyse, benchmark and debate trends in the legacy market. It incorporates an annual review of trends in the legacy market, and a quarterly benchmarking service. The programme for 2016 benchmarked 83 of the UK’s leading charities, who together account 55% of the legacy market. q

Consortium welcomes new members [LEGACY FORESIGHT has announced eight new member charities

that will join its Legacy Monitor Consortium for this year. The consortium comprises 84 members, compared to 83 last year.

The confirmed new members are Amnesty International UK, Arthritis Care, Chest Heart and Stroke Scotland, Children with Cancer, Hearing Dogs for Deaf People, Practical Action, Wakefield Hospice and WaterAid. They are joining such names as Cancer Research UK, which accounts for 6% of all legacy income in the UK, and Help for Heroes – the fastest growing legacy ‘brand’.

As Legacy Foresight points out, 2017 is set to be an interesting year. q

[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

19 19

Vegfam – feeding the hungry without exploiting animals [VEGFAM ‘Feeds The Hungry Without Exploiting Animals’ by funding

sustainable, self-supporting, overseas projects – such as seeds and tools for vegetable growing, fruit/nut tree planting, irrigation and water supplies (some solar/wind powered). They also provide emergency relief in times of crisis and disaster. Such vital projects have been supported since 1963.

Vegfam is professionally operated entirely by volunteers and all funding comes entirely from supporters’ donations.

Why donations are needed

Vegfam funded projects provide food security for children and adults worldwide, improving their livelihoods and alleviating hunger, malnutrition, starvation and thirst. These people are often out of reach of the major charities. As little as £5 enables a family in India to be self-sufficient in fruit, nuts and vegetables or a family in Africa to have access to safe water.

Where donations are spent

The beneficiaries are people suffering from disease, disabilities, disasters (including flood, earthquake and drought), HIV/AIDS, homelessness, hunger, thirst and war. They include marginalised communities, orphanages, refugees, schools/colleges, trafficked women and children, villagers and tribal people. Vegfam is often their only hope of help. In the past 10 years alone, Vegfam funding has helped more than 500,000 people in over 20 countries.

Vegfam helps people to help themselves. All donations and legacies are gratefully received and make a real difference to people's lives. q • You can support this life saving work by donating online at https://www.charitychoice.co.uk/vegfam or call 01550 721197.

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 UK & Ireland comes in. The foundation funds an ever-changing variety of projects which enhance and enrich the lives of vulnerable people with learning disabilities – providing new work, social and cultural opportunities, which enhance the development and wellbeing of the individual and the community.

The foundation provides the financial support to enable new initiatives to start and to help 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 that 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

20 20

www.yourexpertwitness.co.uk

Awareness campaign wins marketing award [

PASS ON SOMETHING LEGENDARY, the 2016 Remember A Charity Week campaign, has won a prestigious award at the #DoDifferent Awards, run by the Marketing Agencies’ Association (MAA) and presented on 2 March at The Brewery in London.

The campaign scooped an award for agency Atomic London in the Craft category of the MAA’s annual event to recognise highly creative work in advertising and marketing. Competition was tough with a shortlist featuring some well-known agencies.

Pass on Something Legendary celebrated the idea that everyone has something valuable to pass on to future generations, through both our words of wisdom and by leaving a gift to a charity. The campaign saw unprecedented support from the consortium’s member charities, government, solicitors and will-writers, and partner organisations, all promoting the LEGACY GIVING umbrella organisation Remember A Charity has welcomed the awareness week to their audiences and helping Supreme Court’s decision to overturn the Court of Appeal’s 2015 decision on Melita Jackson’s to raise the profile of gifts in wills. estate, in which the majority of the estate is allocated to three charities.

The Ministry of Justice announced its support “We respect a family’s right to challenge or contest a decision, but welcome today’s ruling for the first time and the Department for Culture, and the clarity that it gives charities,” said its director Rob Cope.

Media & Sport and HM Treasury also backed “The danger with a case like this is that it pitches family against charity, when in reality this the campaign. is about ensuring a person’s final wishes are met. We have a flexible will system and that The awareness week engaged the British means it doesn’t have to be a case of one versus the other. If someone chooses to leave a public in charitable will-writing via digital, PR and gift to charity in their will, they should have the freedom to do that, always remembering that advertising channels. this can be supplementary to any gift to family and friends.

Remember A Charity Week is a key “But this does underline the importance of ensuring that anyone’s last wishes are set out opportunity for charities to encourage clearly. The fact is that contested wills are becoming more common, so it is important for supporters to have conversations around gifts charities to reduce the likelihood of a legal battle by encouraging supporters who want to in wills, at a time when the whole sector is being leave a legacy to seek professional advice when writing a will.” q noisy about legacies. q

Charity consortium welcomes Supreme Court decision [

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 [THE TROUBLED Southern Health NHS Foundation Trust, which provides mental health services across the

South of England, found itself in the spotlight again this month – twice. Early in the month the Care Quality Commission (CQC) announced that the trust would be prosecuted in relation to an incident in December 2015, when a patient fell from a low roof at a hospital in Winchester.

Later, on 16 March, the trust’s remaining four non-executive directors resigned – the fifth had resigned earlier in the month. The shake-up follows a prolonged scandal last year surrounding failures to investigate deaths of patients in its care and the subsequent prolonged resistance on the part of its chief executive to calls for her resignation.

An interim chair, appointed to oversee improvements, is due to complete his appointment in July, after which a new board will take over.

• The CQC has also been busy completing its first round of inspections of all the acute non-specialist and specialist trusts and has produced a report detailing its findings. As could be expected the results were a mixed bag of good, bad, excellent and awful. Fortunately, the great majority of trusts performed well, as anyone who has had experience of hospital care recently would know. Perhaps that is proven by the fact that, when things do go wrong they are news stories.

• And when things do go wrong patients expect some kind of redress. In some cases all that is needed is an apology and a recognition that there has been a mistake. More importantly, however, is the need for patients who have suffered substantial injury as a result of clinical negligence to have their needs – often long term and substantial – funded by the organisation that caused the injury in the first place. The job of acting for the NHS in those cases falls to the NHS Litigation Authority.

As with all matters regarding public expenditure, the cost of litigation by the NHS has come under scrutiny, with the National Audit Office undertaking a ‘value for money’ audit of clinical negligence cases. Alongside that, the Department of Health is consulting on measures to limit the fees recoverable in clinical negligence cases up to a certain amount.

Even lawyers have acknowledged that this can be a good idea, given it does not encroach on people’s legal rights.

• One area where there is a general agreement that the traditional adversarial approach to clinical negligence claims is outdated and needs to be reformed is that of avoidable birth injuries. A proposed scheme for providing timely and effective reparation for the extensive needs such mistakes can cause, without the extensive and costly rigmarole of a court case, has found favour in all quarters – providing it works!

• Historically the issue of mental health has been the Cinderella of health concerns, despite recent breast-beating activity on the part of some leading politicians. Now, however, the willingness of a handful of football professionals to talk about the effect of their experiences is threatening to bring the issue to the fore.

With sexual abuse in the sport taking centre stage, added to the rumblings in the cycling community regarding bullying and sexism, the subject might just get taken seriously.

• All of the furore about personal injury palls into insignificance when compared with those who suffer catastrophic brain injury, leaving them unable to perform the everyday tasks many of us take for granted. The role of lawyers in representing victims of such injuries is the subject of the annual conference of North East law firm EMG Solicitors, whose series of seminars has accrued somewhat of a reputation for attracting heavyweight speakers. q

www.yourexpertwitness.co.uk

25 25

26 26

www.yourexpertwitness.co.uk

Fixed fee proposals welcomed – with reservations [

NEW GOVERNMENT PROPOSALS for APIL president Neil Sugarman said: “The fixing legal fees in medical negligence cases fact that the Government has decided to tone have been given a cautious welcome by lawyers. down its original plans will come as a relief to The proposals, currently out to consultation, injured patients. Earlier ideas to fix legal fees in are for a fixed cap on all clinical negligence cases up to £100,000 or even £250,000 in value cases up to £25,000. The aim, says the were far too radical, and would have put injured Department of Health, is to prevent rising people into legal straightjackets when all they litigation costs within the NHS. Currently, there desperately want is to get their lives back on is no limit on legal costs that can be recouped. It track after needless medical blunders. is expected the new cap will save the NHS up to “A fixed fee regime for more straightforward £45m a year. cases could be workable, but the priority has The department cites an instance where costs to be the development of a quick and efficient of £83,000 were claimed for a case in which the system. It should then be possible to fix legal patient was awarded £1,000. The total bill for the costs to reflect the speed and efficiency of the NHS was £1.5bn in the financial year 2015-16. new process.

Announcing the proposals, Health Secretary “We now have an opportunity to continue our Jeremy Hunt said: “It’s important that, when work with the Department of Health to try to significant mistakes happen in the NHS, patients The new proposals were announced by ensure the legal process works properly and Health Secretary Jeremy Hunt are able to have an open dialogue with a trust that patients will be able to obtain the legal help about what went wrong, receive reassurance of they need. what is being learnt and can discuss what form “Above all, we need an end to the ‘deny, of recompense or redress may be appropriate. Legal action should only defend and delay’ approach by medical professionals when something be one part of this process. has gone wrong, which is all too common. It makes legal proceedings “Unfortunately, what we often see in lower cost claims is a deeply take far too long, generates unnecessary cost and untold human misery unfair system where unscrupulous law firms cream off excessive legal for those who have been injured.” costs that dwarf the actual damages recovered. We believe this creates The proposals were also welcomed by many in the NHS. One view an adversarial culture of litigation, which is inflating insurance premiums was put by Andrew Foster, chief executive of Wrightington, Wigan and and drawing away resource from the NHS at a crucial time.”

Leigh NHS Foundation Trust.

The proposals are not as draconian as originally mooted: a fact He commented: “The introduction of a fixed recoverable cost for that prompted the warmer-than-expected reception from personal lower value claims would support more proportionate payment to injury lawyers. claimant lawyers – which alongside improvements to the system should make things quicker and better for patients. This seems fair and appropriate, recognising this all comes out of the NHS pot. Less money spent on legal costs will mean more to put into improved patient care at a local level.”

Neil Sugarman concluded: “The best way to cut costs is, of course, for the medical profession to learn from its mistakes and prevent needless injury from happening in the first place and we welcome the fact that this is acknowledged at the outset of the consultation THE NATIONAL AUDIT OFFICE (NAO) is currently engaged document. But when the worst happens, a quick and efficient route to in a Value for Money (VfM) study of the cost to the NHS of clinical compensation to help people get back on track is the very least patients negligence cases. should be able to expect.

Managing the costs of clinical negligence in trusts will examine “We look forward to playing our part in this consultation process.” whether the Department of Health and the NHS Litigation Authority The consultation ends on 1 May. q (NHS LA) understand what is causing the increase in clinical negligence costs, and evaluate their efforts to manage and reduce the costs associated with clinical negligence claims. It is expected to be completed in the summer.

According to the NAO, clinical negligence claims against NHS hospitals cost a significant and rising amount each year, totalling 56bn in 2015-16. The NHS LA received 11,000 new clinical negligence claims in 2015-16.

Welcoming the study, the NHS LA said: “The scope of the study will include the work undertaken by the NHS LA to help trusts to learn from past incidents and reduce the harm which leads to clinical negligence claims, as well as its efforts to improve the response when things do go wrong by encouraging transparency and wider forms of redress for affected patients. VfM studies are a recognised way to routinely examine major areas of government expenditure and the NHS LA welcomes the study and the independent perspective that the NAO will bring to this issue.” q

Audit office examines negligence costs [

www.yourexpertwitness.co.uk

27 27

28 28

www.yourexpertwitness.co.uk

Conference debates catastrophic injury issues [

SOLICITORS AND OTHER professionals involved in cases concerning clients who have suffered from catastrophic injuries can hear from a range of experts at a special one-day conference. The annual conference of Durham-based EMG Solicitors will bring together a number of top speakers who will be sharing their knowledge at the Managing and Improving Your Catastrophic Injury Caseload event on 26 April.

The conference, now in its third year, is renowned for attracting a number of respected professionals to talk on a range of

related and relevant topics during both group and seminar sessions.

This year’s event will take place at the Radisson Blu Hotel in Leeds city centre, enabling easy access for speakers and delegates from all parts of the country to attend.

Among the speakers will be Emma Gaudern of EMG Solicitors (pictured), widely regarded for her expertise as a Court of Protection deputy. She will be leading a discussion on deputyship costs claimed in a special damages schedule. Other speakers will include Paul Kirtley from the North West’s Exchange Chambers, who will talk on interim payments with reference to the Eeles vs Cobham Hire Services case, and James Nocker from surveyors and designers William Martin, looking at accommodation issues for disabled individuals.

EMG Solicitors has also lined up speakers from legal psychological services, personal mobility services and rehabilitation organisations, as well as Professor Dominic Regan, who will address cost developments and reforms.

“We have managed to bring together some highly experienced and knowledgeable speakers, who will provide valuable insights into a number of areas which are extremely relevant to solicitors and other professionals working in this field,” said Emma Gaudern.

“We have had an excellent response to our previous conferences and we are hoping that this one will prove to be just as well received.”

The conference has also been accredited by APIL Training, with those attending receiving five hours of APIL CPD accreditation.

The conference costs £75 plus VAT, with £25 of the fee going towards Headway – the brain injury charity. For further information or to book a place, contact events@emgsolicitors.com. q

DoH publishes domestic abuse guidance [

THE DEPARTMENT OF HEALTH has published guidance for healthcare professionals on supporting adults and young people over 16 who are experiencing domestic abuse, and dependent children in their households. Domestic abuse: a resource for health professionals will help staff to identify potential victims, initiate sensitive routine enquiry and respond effectively to disclosures of abuse.

Commissioners will gain insight into services to support people experiencing domestic violence and abuse, and the importance of joined-up local strategic planning.

The resource draws on the National Institute for Health and Care Excellence multi-agency guidelines on domestic violence and abuse.

It provides: • The legal and policy contexts of domestic abuse in England • Information for commissioners on effective integrated care pathways • Information for service providers on shaping service delivery • What health practitioners need to know and do • Information to ensure the right pathway and services are in • place locally In a foreword to the document, Nicola Blackwood MP – Parliamentary Under Secretary of State for Public Health and Innovation – says: “We know that most often it is our health services through GPs, health visitors, midwives, emergency departments, ambulance and sexual health clinical staff who are the first point of contact for people suffering from abuse. Best estimates suggest that at the very least, domestic abuse costs the public services heavily, £4bn each year with the NHS bearing almost half of this cost.” q www.yourexpertwitness.co.uk

29 29

30 30

www.yourexpertwitness.co.uk

CQC publishes first review of inspections [

THE CARE QUALITY COMMISSION (CQC) has published a report on the findings from its first round of inspections of acute and specialist hospital trusts.

It is the first time such a focused national analysis has been possible, following the introduction of CQC's new comprehensive inspection programme in 2013. Since then the commission has completed inspections of all 136 acute non-specialist and all 18 specialist trusts, and now has a more detailed understanding of the quality of NHS care than ever before – both at trust level and at an individual core service level.

The comprehensive inspections have helped trusts to understand the specific areas where improvements are needed and to take targeted action and have provided increased transparency on performance for people who use services.

In a statement the CQC stated: “The report shows variation in the quality of hospital services – but also highlights those hospital trusts that have been able to make practical changes to the way they deliver care and are seeing improvements to patient care as a result.”

The analysis shows variation both in the quality of care between hospitals and between individual core services within the same hospital. While the majority of hospital services are delivering good quality care and looking after patients well, inspections have also uncovered pockets of poor care even in good hospitals.

Professor Sir Mike Richards, CQC's Chief Inspector of Hospitals, said: “We have now inspected every hospital in England and have a unique picture of the quality of care, right down to individual core services. We have witnessed some fantastic care and examples of innovative practice, but we have also found a wide variation in quality both between hospitals and between services within the same hospital.

“Safety remains a real concern, often due to a failure to learn when things go wrong. Strong leadership that instils a culture of learning and an environment where staff are listened to can play a vital part in bringing about improvements. But compassion is alive and well, with caring the most highly rated of the five key questions – overwhelmingly, we see staff behaving in a caring way, which is supported by what we hear from patients. The unwavering dedication and commitment of staff shines out from our inspection reports.

“What is clear is that while staff continue to work hard to deliver good care, the model of acute care that once worked well cannot continue to meet the needs of today's population. The NHS now stands on a burning platform – the need for change is clear, but finding the resources and energy to deliver that change while simultaneously providing safe patient care can seem almost impossible.

“What this report demonstrates, however, is that transformational change is possible, even in the most challenging of circumstances – we have witnessed it, and seen the evidence that making practical changes to the way that care is delivered can benefit patients. In this report, we have highlighted good practice so that others can learn from it, be inspired by it and adapt what is relevant to use in their own improvement journey. Moving away from an insular approach and actively sharing learning between organisations will be increasingly vital if the whole system is to move forward together.”

Across all acute trusts, critical care services and services for children and young people have received the most ratings of good and outstanding, at 66% and 68% respectively. Of all the core services CQC rates, urgent and emergency services have received the highest number of inadequate ratings (9%), followed by medical care (5%).

That reflects the fact that many accident and emergency departments are struggling to cope with ever increasing attendances.

It also shows the challenges that increased demand has created for managing patient flow throughout other hospital departments and wards, often compounded by delayed discharges which are linked to

problems in the wider system, for example a lack of capacity within community health services or the social care system.

The CQC also found much good and outstanding care and has awarded ‘outstanding’ ratings to five acute NHS trusts and five acute specialist NHS trusts. Also, 15 acute NHS trusts have exited special measures since July 2013 and have delivered innovative changes in order to do so. q

Trust to be prosecuted over roof fall [

THE CARE QUALITY COMMISSION has informed Southern Health NHS Foundation Trust that it will be prosecuted over an alleged failure to provide safe care and treatment resulting in avoidable harm to a patient and other patients being exposed to a significant risk of avoidable harm.

The prosecution follows an incident in December 2015 when a patient sustained serious injuries during a fall from a low roof at Melbury Lodge, Royal Hampshire County Hospital, Winchester.

In a statement the CQC said: “By law, registered providers of health and social care services – including NHS trusts – must take all reasonable steps and exercise all due diligence to ensure patients receive safe care and treatment.”

The case is expected to be heard later in the year by Basingstoke Magistrates’ Court. q

www.yourexpertwitness.co.uk

31 31

32 32

www.yourexpertwitness.co.uk

Government consults on rapid redress scheme [

ON 2 MARCH the Department of Health announced a consultation into the proposed rapid resolution and redress (RRR) scheme for severe avoidable birth injuries. The scheme will aim to introduce a system of consistent, robust and independent investigations for all instances where there may be severe avoidable birth injury, along with access to on-going support and compensation for eligible babies through an administrative scheme without the need to bring a claim through the courts.

The main aims will be to reduce the number of severe avoidable birth injuries by encouraging a learning culture, improve the experience of families and clinicians when harm has occurred and make more effective use of NHS resources.

Last year’s National Maternity Review, Better Births – independently chaired by Baroness Cumberlege – recommended that the Department of Health should consider such a scheme. It would be a voluntary scheme which would not affect an individual's right to litigate. The scheme would apply to harm associated with treatment under NHS maternity services in England only.

The executive summary of the consultation document states: “England is a safe place to give birth, and every year thousands of babies are safely delivered to delighted parents by experienced and dedicated NHS staff. This is the outcome that all families expect and the vast majority of families experience. However, tragedies can sometimes occur and babies can suffer serious harm during delivery.

Thankfully, these incidents are rare; but it is clear that there is still more that we can do to achieve our vision to make NHS maternity services among the safest in the world.”

Currently the only means by which families can secure compensation is through the adversarial and often lengthy process of litigation. According to the report, the average ON 6 FEBRUARY the General Medical Council issued a statement on the issue of time between an incident occurring and doctors remaining on its register after being found to have made errors. an award for compensation is 11.5 years, The statement, issued as ‘web news’, read: “It’s important that a doctor is held to account if as the court must wait until the injured there are concerns about their practice or professional behaviour. child's prognosis is clear to make a final “In very serious cases, a doctor’s practice will be restricted to protect their patients. In compensation settlement. other cases a thorough investigation will determine that a warning is appropriate. A warning – The cost of these incidents is not just a which lasts for five years and is visible to patients and employers on the medical register – is human tragedy, the document says. The serious, however, and is designed to send a clear message that the doctor must learn from rising cost of litigation against the NHS their mistake and not repeat it. contributes to pressure on health service “Patients have told us that warnings are an effective and proportionate way for dealing with funding and risks diverting funds away from these types of concerns.” q frontline care.

GMC issues statement on doctors remaining on register [

The current expenditure on maternity claims is nearly £500m per year. There is also perceived inequity in the healthcare provision between those whose injury is due to clinical negligence and those that are not.

The 12-week consultation, which ends on 26 May, aims to gather a wide range of views to enable a policy to be formulated which supports the needs of families, effectively reduces the number of harmful incidents and is operationally deliverable.

Views are particularly invited from: • Families and individuals who have been affected by a serious birth • injury, in particular injury resulting in cerebral palsy/brain damage • Clinicians who have experience of these serious events • Charities, patient groups and legal organisations that have • experience of these incidents and the litigation process • National research and audit groups responsible for investigating • these incidents currently Responses are not, however, restricted to those groups. q www.yourexpertwitness.co.uk

33 33

34 34

www.yourexpertwitness.co.uk

Surgery ‘rationing’ row rumbles on [ A CONTROVERSY OVER the

‘rationing’ of joint replacement operations, or arthroplasty, has been played out in the press in recent months. Last year there were reports that some clinical commissioning groups (CCGs) were ‘targeting’ smokers and the obese and denying or delaying routine surgery such as hip and knee replacements to patients until they stop smoking or lose weight – in contravention of national clinical guidance.

A report from the Royal College of Surgeons explored how widespread the practice of restricting surgery on the basis of weight or smoking status has become by examining the commissioning policies of CCGs in England.

In January of this year the issue resurfaced, with reports in the national press that patients were being denied hip replacements unless they were in so much pain they could not sleep. The issue of body mass index (BMI) was also revisited.

In a letter to The Times, British Orthopaedic Association president Ian Winson said: “Firstly, there is robust

‘Bed blocking’ crisis stacks up future problems [A FURTHER CONTROVERSY regarding the future consequences of delaying surgery –

in terms of increases in claims against trusts as well as for patient well-being – was sparked by the NHS ‘bed crisis’. The resultant cancellation of operations reached record levels this winter, according to a report by ITN in January.

A report by The Times in February under the headline Doctors idle as beds crisis halts surgery quoted NHS England figures showing that 21,249 planned operations were cancelled for non-medical reasons from October to December last year.

The result of these delays means that the outcomes for patients when they eventually do undergo their procedures can be drastically reduced, with more complex surgery becoming necessary.

Ian Winson, president of the British Orthopaedic Association, told the paper: “If you put in an artificial delay to surgery, that is almost certainly going to have an effect. You may have to adapt what you are doing and that may have a less good functional outcome for the patient.

“The evidence is that they do not improve their pain scores to normal. They may have a substantial improvement but they don’t get to normal.

“In knee arthritis, often you get deformities occurring and those deformities require more complex prostheses to go in. Deformities can progress during the wait.”

His concerns were echoed by consultant surgeon, Mr Mark Cheetham, who commented: “The group of patients I really worry about are those who are having hip and knee replacements because they are pretty much not getting into hospital at the moment. There are people who will deteriorate. A hip or knee replacement can get progressively more complex if the joints become more deformed.” q

evidence that having a BMI between 30 and 40 does not increase your risk of a poor outcome following either hip or knee replacement. Indeed, there is some evidence that this group of patients is actually the ‘happiest’ with their outcome.

If your BMI is over 40 your complication risk goes up marginally, but if you have an uncomplicated outcome you are as happy with the outcome as thinner patients.”

He went on to compare the cost benefit of arthroplasty to not having the surgery, explaining that a hip replacement costs £7.50 a week, with 90% of hip replacements still in place at the end of a patient's life. That compares to the cost of patients attending their GP on average ‘a couple of times a month’ before surgery, instead of once or twice a year afterwards.

He continued: “If some form of rationing is deemed essential, it should not be targeted at treatments that are cost effective and will help maintain the fitness and independence of patients. This clearly applies to total hip and knee replacement as two of the most cost effective treatments available across the whole of health care. Preventing patients accessing these life enhancing treatments smacks of moral bankruptcy.”

The campaign was continued online

by Martyn Porter, medical director of the National Joint Registry, who argued that rationing was ‘not rational’ Said Mr Porter: “Joint replacement surgery offers significant benefits: getting patients back to their chosen lifestyle sooner, free from pain and with improved mobility. As a joint replacement patient myself, I particularly understand the importance of this.

“Financial pressures on the NHS have resulted in some providers recently suggesting a temporary suspension of joint replacement procedures or excluding certain patient groups based on lifestyle factors, such as weight. The evidence from the National Joint Registry suggests that this is not rational.

“Joint replacement surgery is not a lifestyle operation, it is primarily an operation to relieve pain, keep people at work and free patients from community care. The taxpayer will not save money by providers denying joint replacements to patients as these are highly effective and cost effective procedures.” q www.yourexpertwitness.co.uk

35 35

36 36

www.yourexpertwitness.co.uk

Anaesthesia implicated in cardiac arrest in pregnancy: but obesity is a contributory factor

[

NEARLY A QUARTER of cardiac arrests in pregnancy are associated with complications of obstetric anaesthesia, according to a study published in February in the British Journal of Obstetrics and Gynaecology.

The three-year study showed that maternal cardiac arrest in the UK is very rare (a one-in-36,000 risk) and that maternal survival rates of 58% were possible due to timely resuscitation and rapid perimortem caesarean section (PMCS). In the 66 women involved in the study, cardiac output was restored in 48 and 49 women had a PMCS. The results also show that time from collapse to PMCS was significantly shorter in women who survived. In all, 58 babies were delivered, of which 12 were stillborn.

The results found that the main association of collapse amongst antenatal women was obstetric anaesthesia, given as an epidural, spinal or combined spinal-epidural. A quarter of the women in the study had a cardiac arrest following obstetric anaesthesia: all survived.

Of the 16 women who had a cardiac arrest following obstetric anaesthesia, 12 were defined as obese – having a body mass index of 30 or more – supporting the view that obese pregnant women are at a higher risk of complications of anaesthesia.

Dr Virginia Beckett, lead author and consultant obstetrician and gynaecologist at Bradford Teaching Hospitals NHS Foundation Trust, said: “Our study shows that management of cardiac arrest in pregnancy in the UK, following the introduction of training such as the Managing Obstetric Emergencies and Trauma course, has resulted in a 58% maternal survival rate. The main reasons for this appear to be the involvement of senior medical professionals and swift PMCS.

“However, our study shows that the single, biggest association of maternal cardiac arrest is a complication of anaesthesia. Further research is needed into this finding which presents an opportunity to reduce the incidence of maternal cardiac arrest in the UK. Mr Edward Morris, vice president for clinical quality at the Royal College of Obstetricians and Gynaecologists, said: “This study demonstrates the importance of robust multi-disciplinary risk assessment processes in antenatal care, as well as team training to manage obstetric emergencies. It is also a great example of the value of collecting high-quality data through the UK Obstetric Surveillance System to improve outcomes for patients.

“Childbirth can be unpredictable and timely access to specialist care is critical, especially for those considered at higher risk due to preexisting health conditions. This data supports existing evidence that maternal cardiac arrest is becoming more common, and there may be opportunities to further improve survival rates through detailed analysis of this data.”

Commenting on the finding that three quarters of women suffering cardiac arrest were obese, he said: “Obesity has reached pandemic proportions globally, with around one in five pregnant women in the UK considered obese. This increases their risk of miscarriage, stillbirth and neonatal death as well as gestational diabetes, blood clots, preeclampsia, more complicated labours, and severe bleeding after the birth. Although they survived, a high proportion of the women who had cardiac arrests following obstetric anaesthesia were obese.” q

www.yourexpertwitness.co.uk

37 37

New guidelines clarify hearing loss calculations [

IN 2015 the team that produced the widely-accepted guidelines on the diagnosis of Noise Induced Hearing Loss (NIHL) – Coles, Lutman and Buffin (CLB) – produced a further paper to address a number of concerns that had been raised over the years about quantification of the loss. The new paper was published in 2016 in the Clinical Journal of Otolaryngology.

The modified guidelines, known as the Lutman, Coles and Buffin (LCB) guidelines for Diagnosis and Quantification of Noise Induced Hearing Loss, provide a method of quantification which the previous guidelines failed to include.

One of the main thrusts of assessing the extent of NIHL in a patient who may present years after the events claimed to have caused it, is to differentiate the hearing loss in the patient from the expected deterioration caused by ageing – the age-associated hearing loss (AAHL) date.

An article published on 5 January by Curtis Law Solicitors explained: “The original guidelines recommended that the AAHL date used could be selected from data for someone who was 10 years older or younger than the claimant. The new guidelines restrict the range of data that can be applied and state that the statistics for the claimant’s actual age at the time of the hearing test should be applied.”

Another issue has been the frequency at which the benchmark should be applied. Again, the new guidelines offer clarity.

The blogger at Curtis Law explains: “In more recent cases we have seen the focus shift to 4KHz when considering whether a claimant suffers from NIHL. The LCB guidelines rely heavily on the level of loss at 4KHz. If there is little to no loss at 4KHz it will lower the level of NIHL considerably.”

The article concludes: “There has been a varied opinion to the introduction of the LCB guidelines.

Some have the view that the new guidelines will reduce the level of NIHL suffered by the claimant and others believe that it will increase the number of successful NIHL claims.

“The new guidelines seem to have been introduced to simply clarify and cover the concerns found within the original guidelines. The LCB guidelines have provided clear and concise methods to quantify NIHL to prevent the different opinions and calculations previously applied by medical experts when calculating NIHL.” q

38 38

www.yourexpertwitness.co.uk

Become your own expert, NIHL lawyers advise [A RELIABLE WAY defendant firms can

make sure they do not fall foul of the new climate was put forward by law firm Geldards, in light of trends towards claims being brought by “…relatively inexperienced paralegals to maintain acceptable profit margins”.

The solution proposed is for lawyers to make themselves experts, instilling higher levels of confidence in clients.

“By basing well set-out and reasoned arguments on the Coles et al guidelines and other reliable references, defendant claims handlers can discredit the medical report of even the most renowned claimant medical expert, secure in the knowledge that, if court proceedings are nevertheless issued, the defendant’s medical expert will usually corroborate and support the defence arguments. Conversely, the (increasingly few) strong claims can be quickly identified and settled before claimant costs can escalate,” the firm states. q

GDC stance on tooth whitening gets European backing [

IN RECENT ISSUES of Your Expert Witness we have highlighted the on-going issue of unqualified people carrying out illegal tooth whitening – and the efforts being made by the General Dental Council (GDC) to bring offenders to book. Since the last issue highlighted a case in Wales there have been prosecutions in Orpington, Salford and London.

At the end of last year the legal position on tooth whitening of the GDC received the backing of the organisation that brings together all European dental regulators. FEDCAR – the Federation of European Dental Competent Authorities and Regulators – published a statement endorsing its approach as the one to be used across Europe.

The statement said: “In the interests of high standards of oral healthcare, and irrespective of the chemical products used, tooth whitening should only be provided under the supervision of a dental practitioner.”

According to the GDC: “This statement goes some way to supporting the legal position in the UK, established in the High Court case of GDC v Jamous in 2013, that tooth whitening is the practice of dentistry and therefore can only be performed by registered dental care professionals. The General Dental Council has successfully prosecuted a number of illegal tooth whiteners since the High Court decision.”

The FEDCAR statement creates a European position on the issue – which it is hoped will improve patient safety across Europe.

Victoria Sheppard-Jones, interim head of illegal practice at the GDC, said: “This is great news for the dental profession and patients.

It endorses the UK legal position that tooth whitening is a complicated and potentially risky procedure and as such can only be undertaken by a qualified dental professional.

“As always, we encourage anybody who is considering tooth whitening to check the register to ensure that the individual is legally allowed to do so before proceeding.”

In the latest case a woman from London was ordered to pay more than £2,000 after pleading guilty to a charge under the Dentists Act 1984. In that case, where the offender provided tooth whitening treatment to an individual in south east London, the individual concerned immediately experienced discomfort and 'shooting pains' during the treatment and suffered with inflamed gums for a week afterwards.

Ms Sheppard-Jones commented: “Our first successful prosecution of 2017 shows that we are continuing to tackle

illegal dentistry in order to protect the public from dangerous and potentially harmful work.

“For anyone considering tooth whitening, we urge you to check our online register to make sure the individual offering the treatment is a registered dental care professional. This way you can be confident that the person offering the treatment is legally allowed to do so.” q

www.yourexpertwitness.co.uk

39 39

The value of a screening report

By TOBY TALBOT BDS MSD (Washington) FDS RCS

TOBY TALBOT is a specialist in restorative dentistry, prosthodontics, endodontics and periodontics. He has over 20 years experience as an expert witness with a specific interest in dental negligence litigation claims. In this issue he looks at the value of a screening report

[MANY LEGAL FIRMS are initially approached by a client

venting their spleen about dissatisfaction with dental treatment. Unresolved problems, protracted pain or poor communication are often the main precursors. Surprisingly, if there is a good relationship, patients will rarely complain and actually blame themselves when things go wrong. In my experience it is the fundamental breakdown of that relationship, or the failure of its formation in the first place, which drives most claimants to seek legal redress.

40 40

www.yourexpertwitness.co.uk

After the letter of claim is prepared (with a resumÊ of the history of the complaint) providing the claimant’s view of events, the dental records of the miscreant are obtained and an expert witness opinion is sought.

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

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

Let’s take a patient who has been under the care of a general dentist for 20 years before they discover, after attending another dentist, that they have advanced periodontal disease with bone loss that will invariably lead to tooth loss. A review of their dental records by the expert shows limited documentation related to assessment of the gums, apart from 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 screening report follows after the review of the dental records highlights serial omissions.

“Aha!”, you exclaim, “We’ve got him. Breach of Duty. Now go for the jugular!”

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.

Yours truly is then instructed to examine the client, perhaps 18 months after they attended the periodontist, to provide the current condition, prognosis and treatment options in my capacity as a specialist in restorative dentistry.

At the consultation, the client presents with ongoing severe active periodontal disease associated with abundant plaque deposits throughout. It is clear this patient has not taken a blind bit of notice, despite repeated visits to the periodontist, and is quite ill-suited to expensive dental implants.

Not only do I consider that the patient is a candidate for conventional dentures, but I consider that he shows such a disregard for his own oral health that in all probability he is behaving as he did with the defendant – ignoring advice and failing to comply. In essence, the client is wholly culpable for their own tooth loss. My report has now totally contradicted that of the first ‘expert’.

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 that only one expert is engaged. In essence, the screening report was worthless. I advise counsel not to waste their time and money – it rarely is worth the paper it is printed on.

That’s why I will never provide a screening report. I will never provide any report unless I examine the claimant myself. And that’s why I advise counsel to always commission the same expert to provide both Breach of Duty, Causation and Current Condition and Prognosis Reports and request that the patient is examined. 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

Delayed follow-ups lead to sight loss, survey finds [THE Royal College of Ophthalmologists (RCOphth)

Hospital eye services are required to meet the legal target of referral to treatment within an 18has published a surveillance report of patients coming week timeframe. The lack of safeguards, such as to harm due to delays in treatment and follow-up the absence of routine data available about delayed appointments. The research, conducted through the appointments for follow-up patients, means that British Ophthalmological Surveillance Unit (BOSU), hospital eye services are unable to quantify the extent found patients suffering permanent and severe visual of the problem or the harm coming to this, often loss due to health service initiated delays. vulnerable, patient group.

It involved all UK consultant ophthalmologists and Professor Carrie MacEwen, president of the showed that up to 22 patients per month are harmed by RCOphth, said: “The BOSU survey has validated such delays. The patients are from a vulnerable social what our members have been telling us for group with chronic conditions requiring long-term routine some time, which is concerns that patients are follow-up, such as glaucoma, age related macular Professor Carrie MacEwen, experiencing preventable sight loss due to delayed degeneration and diabetic retinopathy. president of the Royal College or lost follow-up appointments.”

Early diagnosis and successful new treatments have of Ophthalmologists The RCOphth is calling for NHS England to increased the demands placed upon the hospital eye collect and report on the intended follow-up service meaning that regular follow-up appointments appointment date in hospital eye services, which will alert the within the clinically recommended time are not always accommodated, ophthalmic teams of when a patient is not being seen within their demonstrating a lack of capacity and compromising patient safety. clinically recommended time.

The surveillance study through the BOSU was able to establish Professor MacEwen continued: “The benefits of the data item diagnosis, length of delay and cause of vision loss over the 12-month reporting will improve individual patient safety and reduce overall period from March 2015 to February 2016. It found that 132 patients risks for all out-patients. Being able to measure and identify experienced permanent deterioration of vision. There were also 15 shortfall in overall capacity will mean hospital eye services can unplanned surgical procedures and six emergency hospital admissions. more easily identify system improvements and stimulate discussion around new ways of providing care.”

The situation is potentially made worse by recent changes to the outpatient tariff payments, which favour new patients over follow-ups. In a statement issued on 22 Feb the RCOphth said: “The recent changes in outpatient tariff payments have the potential to compound this situation by putting further THE GENERAL OPTICAL COUNCIL (GOC), the UK regulator for opticians, has pressures on providers to reduce or delay published guidance to assist registrants in meeting its standard relating to the professional clinically appropriate follow up appointments duty of candour that requires all those working in healthcare to be open, honest and and even creating the potential that transparent with patients when things go wrong and a patient has suffered physical or recommended chronic disease pathways psychological harm or distress, or there might be implications for their future care. become financially unviable and endanger The GOC’s head of education and standards, Marcus Dye, said, “In our recent registrant patient safety. survey, 86% of respondents told us they felt confident in their ability to meet our new “Currently there is a lack of established Standards of Practice. However it was clear when we consulted on the standards that provision to undertake the required care in a registrants wanted more guidance to help them apply the professional duty of candour community or primary care setting. The use in practice. Candour is a relatively new concept in healthcare, so it’s not surprising that of inventive and supportive local contract registrants asked for further help in this area. variations could potentially alleviate this risk, “This guidance will help to support our registrants and give them extra confidence in whilst work and training continue to increase applying the standard relating to the professional duty of candour.” q community and secondary care capacity.” q

Opticians’ duty of candour outlined [

www.yourexpertwitness.co.uk

43 43

It’s boom, then bust for cosmetic surgery [

THE British Association of Aesthetic Plastic Surgeons (BAAPS) has declared that the ‘bust boom has bust’, following the publication of figures that the number of Britons undergoing cosmetic surgery in 2016 was the lowest in nearly a decade. The clinical association cites a climate of global unrest and ‘bad news overload’ as causes, leaving patients prioritising stability and comfort over big life changes.

New data from the BAAPS, which represents the majority of NHS-trained consultant plastic surgeons in private practice, revealed that the number of cosmetic ops last year dropped 40% since reaching record-breaking heights in 2015.

For the first time in almost a decade of relatively consistent growth, cosmetic surgical procedures for women and men combined dipped below 31,000 – 5% less than those in 2007. Male procedure numbers were fewer than in 2005 and 48% less than in 2015. They still accounted for the same proportion of all patients, however – roughly 9% – as they have done historically.

BAAPS president and consultant plastic surgeon Simon Withey believes the economic downturn means the public is being more thoughtful about the serious impact of surgical procedures.

“The 2016 BAAPS audit demonstrates that, at the very least, patients seem to be getting the

44 44

www.yourexpertwitness.co.uk

message that cosmetic surgery is not a ‘quick fix’ but a serious commitment and are as a result, carefully evaluating risks as well as benefits surgery may offer,” he said. “If it means people are taking their time to be truly sure a procedure is the right investment for them, then this can only be a good thing.”

Anecdotally, however, non-surgical treatments such as facial injectables have remained on a steady rise.

Consultant plastic surgeon and former BAAPS president Rajiv Grover, who compiles the audit on an annual basis, commented: “In a climate of global fragility the public are less likely to spend on significant alterations and become more fiscally conservative, by and large opting for less costly non-surgical procedures such as chemical peels and microdermabrasion, rather than committing to more permanent changes.

“The background of negative news and economic uncertainty seems to have reinvigorated the famous British ‘stiff upper lip’ – achieved, however, through dermal fillers and wrinkle-relaxing injections, rather than surgery!

“It’s worth remembering, however, that the non-surgical sector is rife with lax regulation, maverick behaviour and unethical promotional gimmicks, so the public must remain vigilant.

Non-surgical does not mean, and never has meant, non-medical.” q

Campaign supports people living with scars [

IN AUGUST LAST YEAR the manufacturers of Bio-Oil launched a campaign in collaboration with behavioural psychologist Jo Hemmings to support people living with scars. The Scars Uncovered campaign was in response to research carried out by the company on the psychological impact felt by people living with scarring.

“A scar can serve as a constant reminder of an often traumatic experience, which can explain why people are often tempted to hide them away and compartmentalise this part of themselves,” explained Jo Hemming. “This behaviour is often in direct conflict with the psychological process of acceptance, therefore impacting long-term psychological wellbeing. An important part of coming to terms with a disfigurement on the body is to face it and build up comfort levels – by looking at it or massaging it in order to begin the acceptance process. Over time, comfort levels will develop and acceptance can be established.”

A survey conducted among 1,000 people living with scarring in the UK found that 62% said their scar has negatively impacted their body confidence. One in 10 feel that their scar has become more visible than their true self and 41% would like to feel that they don’t have to hide their scar.

Bio-Oil has also developed a video for healthcare professionals to help support patient advice giving.

The campaign confirms research carried out in the UK and South Africa, which also found that scars had a noted psychological effect.

The manufacturers of Scarfade silicone scar gel noted: “Scars from a variety of sources can have long-term emotional effects in addition to the physical discomfort and marring of the skin. These can be caused by memories of how the injury occurred or from unhappiness at the appearance of the scar.”

When the scars are the result of action by others, either as a result of an accident, negligence or even intended actions such as assault, the psychological effects can form part of the injury when claiming.

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

www.yourexpertwitness.co.uk

45 45

Electrical devices can Heart patients affect pacemakers, to be warned of US study finds [HOUSEHOLD APPLIANCES AND electrical tools can interfere

with a pacemaker’s ability to regulate heartbeats if used in very close proximity to the body. That was the finding of a study published in the American Heart Association’s journal Circulation and reported by the British Heart Foundation (BHF).

The study looked specifically at how close a person with a pacemaker needs to be to an appliance before the electrical and magnetic fields (EMF) begin to interfere with the pacemaker and to what degree. They tested the impact of EMF exposure on 119 patients with pacemakers under various conditions, starting with common everyday exposure and working up the EMF intensity until the researchers noted a pacemaker sensing failure.

Dr Mike Knapton, associate medical director at the BHF, commented: “When you have a pacemaker or ICD implanted you will be given important information about your device and how to reduce the risk of interference with its function.

“This study found that some household appliances and electrical tools interfered with pacemakers when they were held close to the patient’s chest but this interference was reduced when the pacemaker was adjusted to less sensitive settings.

“While most things shouldn’t affect how your pacemaker or ICD works, you should be cautious and keep anything with a magnetic field and certain electrical equipment at least six inches away from your device.” q

46 46

www.yourexpertwitness.co.uk

infection risk

[IN FEBRUARY Public Health England, in collaboration

with the British Cardiovascular Society (BCS) and other partners, issued an important update regarding mycobacterium chimaera infections associated with cardiopulmonary bypass.

According to the BCS, mycobacterium chimaera is recognised as a cause of severe infections in patients who have undergone cardiothoracic surgery. The risk is highest after valve surgery and the problem is not confined to the UK. There have been 25 cases in the UK and it is likely the infection is transmitted from the heater/cooler system of the cardiopulmonary bypass equipment.

Mycobacterium chimaera can cause endocarditis, disseminated infection and chronic sternal wound infection which may present years after surgery. The condition has a high mortality rate – 15 of the 25 UK cases have died.

Cardiothoracic departments have been made aware of the risk and safety measures have been recommended to decrease the risk of infection going forward. It has been recommended that valve surgery patients operated on since 2013 in units with specific heater/cooler circuits be notified in writing of the risk by the relevant trusts.

In addition, units have been requested to include the specific risk of mycobacterium chimaera infection in their consent process for valve surgery going forward. q

Mother receives compensation for heart op error – after 10-year fight [

THE MOTHER OF a patient who was left severely brain damaged following heart surgery at the age of nine and died 11 years later has received £430,000 in compensation from Leeds Teaching Hospital NHS Trust.

The operation that eventually led to the death of Carrie Wright from Hull was carried out by disgraced surgeon Dr Nihal Weerasena.

In January Dr Weerasena was found guilty of misconduct by the Medical Practitioners Tribunal Service (MPTS) after a number of failures while employed by Leeds Teaching Hospitals NHS Trust between 2008 and 2012. The MPTS investigated seven cases involving six children and one adult. He was found guilty in six of the cases and has now been erased from the medical register.

Carrie’s operation took place five years before any of those cases.

Carrie underwent elective surgery for the repair of a heart defect in September 2003 at Leeds General Infirmary. The surgical notes showed that Carrie’s body was cooled and put into circulatory arrest for a total of 121 minutes. At the time of the operation periods of circulatory arrest of more than 45 minutes were regarded as unsafe and likely to result in brain injury, so were to be avoided.

As a result, Carrie did indeed suffer diffuse anoxic brain injury and was unable to walk or stand unaided. She required an electric wheelchair, a specially adapted vehicle for transport, lifting or hoisting for bathing and toileting and had very limited speech.

Carrie died on 13 December 2014, aged 20, as a result of complications from her injuries. Her mother, Dawn Clayton, had lodged a claim for negligence, but it was not until Dr Weerasena was found guilty of misconduct that the NHS Litigation Authority settled the claim.

Andrew Harrison, a specialist medical negligence lawyer at law firm Hodge Jones & Allen, represented Carrie’s mother.

He said: “In the absence of any explanation in Dr Weerasena’s notes, it can only be the case that he negligently failed to appreciate the risk of brain damage that the prolonged period of circulatory arrest could cause. If he had appreciated that risk, then he would have taken steps to avoid it and there were alternatives as it was not an emergency. Further, had the total period of circulatory arrest been restricted to no more than 45 minutes, it is highly likely that Carrie would not have suffered severe brain damage and would be alive today.”

He also believes that the hospital did not investigate the circumstances surrounding Carrie’s operation, saying: “I enquired with the hospital about whether an investigation into what happened during Carrie’s surgery took place but was told there was no such investigation. If it is the case that none took place, it is profoundly worrying that a hospital could let such an event go unchecked, particularly given the later events that have now come to light.”

Carrie’s mother commented: “I only received a letter of apology last year, some 13 years after the operation. I have always felt that they wanted to sweep this matter under the carpet.”

She continued: “I can only wonder if there are other cases like Carrie’s that have gone unreported and whether closer investigation by the hospital could have prevented these later cases from happening.

“It has been horrendous for our family to lose Carrie in the way that we did, this has been exacerbated by the long battle we have had with the hospital to get recognition of their failings. The toll has been immeasurable and my heart goes out to all those who have also suffered at the hands of Dr Weerasena.” q

www.yourexpertwitness.co.uk

47 47

Gastroenterologists welcome NCEPOD report [LAST SUMMER the National Confidential

Enquiry into Patient Outcome and Death (NCEPOD) published a report reviewing the care received by patients who had acute pancreatitis – one of the causes of clinical negligence cases in the area of gastroenteritis.

Treat the Cause was the report of a study which identified 14,479 patients with acute pancreatitis during a six month period from 1 January 2014. From those a group of 8,925 patients was selected who had either stayed in hospital three or more nights, gone to critical care or died. From a random sample, 712 patients underwent hospital clinician review and 418 patients had external peer review.

Overall, NCEPOD found that there was room for improvement in care in 50% of patients with acute pancreatitis: 21% of patients in the study had one or more previous episodes of acute pancreatitis, 93% of those for the same cause.

According to the report, case reviewers felt that efforts to prevent recurrent episodes due to gallstones and alcohol were inadequate.

48 48

www.yourexpertwitness.co.uk

Clinicians reported that the date of first definitive treatment for gallstones was not acceptable in nearly one third of cases.

One aspect of general care where improvements could be made was in the avoidance of inappropriate antibiotic prescription: one fifth of patients were being given antibiotics unnecessarily, the report said.

The use of an early warning score was omitted in 31% of emergency department admissions and appropriate investigations were omitted in 22% of cases. The study also found that 21% of patients who did not have an ultrasound had no reason identified to omit this, potentially missing cases of gallstones.

The summary of the report stated: “We recommend that clinicians fully investigate patients for the cause of acute pancreatitis.

They should ensure early treatment for patients with gallstones and alcohol cessation advice where indicated. We recommend the judicious use of antibiotics as most patients with acute pancreatitis do not require them.”

The British Society of Gastroenterology (BSG) responded positively to the report.

A spokesman, Dr Kofi Oppong, said: “The British Society of Gastroenterology strongly welcomes the NCEPOD report and recommendations on the treatment of acute pancreatitis. A key component of NCEPOD's recommendations is to emphasise the importance of multidisciplinary team working, including surgeons, gastroenterologists and radiologists, in the treatment of acute pancreatitis and the BSG strongly support this view.” q

Somatoform disorders in personal injury claims

By ZOFIA LUDWIG, Managing Director, Expert in Mind

[

THIS IS A complex area for clinicians requiring a multi-speciality approach to expert assessment as well as treatment.

The scientific understanding of somatoform disorders (chapter 45 of ICD 10) is still very superficial yet the phenomenon of medically unexplained physical symptoms (MUPS) has been estimated to account for between 15 and 30 per cent of primary care consultations.

The recognition that physical symptoms which are experienced as real can arise from psychological causes was central to the development of modern dynamic psychiatry and the description of unconscious processes. The classical descriptions of hysteria, in which patients presenting with major neurological symptoms such as limb paralysis or blindness, still occur but the manifestations are now often more subtle such as chronic pain syndromes and the

psychological elaboration of a diagnosed physical problem.

There are also areas of contention such as chronic fatigue, fibromyalgia and multiple chemical sensitivity, where causation is unclear and sometimes disputed, but where unconscious psychological processes are probably playing a part.

The new DSM 5 classification system introduced the diagnosis of somatic symptom disorder in which the emphasis is on positive symptoms and signs of the condition – namely distressing somatic symptoms with abnormal thoughts, feelings and behaviours in response to these symptoms rather than just the absence of a medical physical explanation for the somatic symptoms. Another important change is recognising that somatic symptom disorder is often present alongside a diagnosis of medical conditions.

In assessing personal injury claims in which there are physical and psychiatric symptoms, it is important that the possibility that somatoform or unconscious processes are contributing to the claimant’s disability is considered at an early stage by both the physical medicine experts and the psychiatric expert. It may be that the physical medicine expert is first to flag the possibility, and it is then for the psychiatrist to make the diagnosis. Delay in diagnosis may worsen the final prognosis for the somatoform symptoms.

Physical medicine experts may be tempted to ignore or to skirt around the possibility for fear of upsetting the claimant, but a sensitively worded and clear statement that they are concerned that unconscious psychological processes may be causing or contributing to a symptom will often lead to earlier and more effective treatment and a better prognosis. q

www.yourexpertwitness.co.uk

49 49

50 50

www.yourexpertwitness.co.uk

Psychologists respond to BBC mental health deaths revelation [A BBC Panorama programme claiming that the number of

unexpected deaths reported by mental health trusts has increased by nearly 50% in the space of only three years provoked a statement from the president of the British Psychological Society (BPS).

The programme used Freedom of Information requests to elicit figures from 33 out of 57 mental health trusts. They revealed the number of ‘unexpected deaths’ – deaths from suicide, neglect and misadventure – increased from 2,067 to 3,160. The Department of

Why footballers don’t talk about their mental health

Health told the programme the increase was to be expected because of changes in the way deaths are recorded and investigated.

BPS president Professor Peter Kinderman said: “Although this large increase could be a result of NHS improvements to how these events are recorded and investigated this is still very worrying. Mental health services have been chronically underfunded in the past and even though the Government has committed to more funding there has been no guarantee this will not be spent elsewhere.

“With increasing patient demand and budget cuts there is a real risk that mental health service funding could be used to make up short falls in other areas. We urge the Government to fund and deliver the recommendations of the NHS England report The five year forward view for mental health to ensure parity of esteem between mental and physical health services.”

Marjorie Wallace, from the mental health charity Sane, said she was shocked by the rise: “We are particularly concerned because these are the most vulnerable people that we have entrusted into the care of mental health services and they are so often being failed - both them and their families.”

The Department of Health told the programme: “This increase in the number of deaths is to be expected because the NHS is very deliberately improving the way such events are recorded and investigated following past failings. From April all NHS trusts will be required to publish both numbers of avoidable deaths and how they are improving care.” q

[

RESEARCH PRESENTED TO the BPS’s Division of Clinical Psychology at its conference in Liverpool has concluded that professional footballers do not feel it is safe to show vulnerability or admit to experiencing emotional struggles. The research was carried out by Dr Susan Wood in a bid to understand professional footballers’ experience of mental health difficulties and what might prevent or encourage them to seek help.

A handful of footballers have recently opened up about their experience of mental health difficulties, but the prevalence of such problems in this group is likely to be similar to the general population – one in four.

Dr Wood undertook in-depth interviews with seven male professional players as part of a research team from Coventry University. The football field was seen as a battlefield and any signs of vulnerability or weakness felt like threats to their survival. In many of the footballers’ stories, injury, transition and ‘falling out of love with the game’ were precursors to mental health difficulties.

Several players also talked about their use of maladaptive forms of escapism – substance misuse, gambling, alcohol, aggression, women and partying – to try to manage the difficult emotions they experienced. The risk of more permanent escapism through suicide was also expressed as a way out from their difficulties.

Dr Wood explained: “The footballers described an environment where it did not feel safe to show vulnerability or emotional struggles, fearing that this would lead to a straight ticket out of football. This left them feeling trapped, isolated and ashamed as they attempted to conceal their difficulties behind the bravado and brave face.

“The pressures footballers experience are often overlooked behind the money and success of the Premier League. With mental health only recently having been explored, homophobia an on-going debate and recent reports of sexual abuse, this is a population that warrants further research and support.” q www.yourexpertwitness.co.uk

51 51

Global Year Against Pain After Surgery

By DR STEPHEN HUMBLE MBChB MSc PhD FCARCSI Consultant in anaesthesia and pain medicine at Medicolegal Associates Ltd

[

THE International Association for the Study of Pain (IASP) is the leading professional forum for science, clinical practice and education in the field of pain. 2017 is the IASP Global Year Against Pain After Surgery. IASP aims to raise awareness of this significant issue among clinicians, the media and the general public in order ultimately to improve pain management after surgery and also reduce the risk of developing chronic pain.

Indeed, there are plans for chronic post-surgical pain (CPSP) to be included in the latest version of the International Classification of Diseases, ICD-11. CPSP may be considered as pain that lasts for more than three months after surgery, that was not present before the operation, that is related to the surgical scar and cannot be accounted for by another illness. Chronic pain after surgery occurs after 5-10% of all operations performed and is intolerable after approximately 1% of all operations performed.

There are several risk factors related to the development of CPSP, including the type of surgery carried out. For example the rates of CPSP after the following procedures are: mastectomy (25%), amputation (50%), thoracotomy (40%), inguinal hernia repair (9%) and hip and knee replacement (10%). A history of a surgical lesion of a major nerve appears in many cases of CPSP and certainly increases the risk of its occurrence. Other more general biological, psychological and social factors are implicated – such as emotional distress, severe untreated acute postoperative pain, pre-existing chronic pain at another site and being on strong opioids, such as morphine, long-term preoperatively.

People with CPSP typically report both normal physiological pain (nociceptive pain) as well as symptoms related to nerve damage or dysfunction (neuropathic pain) such as burning, sharp, shooting pains.

Severe hypersensitivity to touch may also be present in the form of allodynia and hyperalgesia. Allodynia refers to pain due to a stimulus that does not normally cause pain. Hyperalgesia refers to increased pain from a stimulus that normally does cause pain. Screening tools based on verbal pain descriptive terms may be useful, combined with a targeted clinical examination, to identify the presence of neuropathic pain which will then influence the overall management. Internationally validated clinical tools include LANSS, DN4, painDETECT and NPQ. It is important to identify neuropathic pain early as delayed proper treatment may be associated with an increased risk of developing chronic pain.

The concept of using pre-emptive measures to prevent the development of CPSP has been around for decades and many research papers and conference lectures have been devoted to the subject. At the time of writing, there is not a simple solution to the problem. There have been relatively few high quality studies on this topic and the clinical literature is still open to expert interpretation. Early aggressive management with multimodal pain relief may be effective in many cases as well as intra-operative measures including anaesthetic techniques and certain neuropathic pain medications to supplement general anaesthesia. In this way, it may be possible to reduce the risk of CPSP in selected clinical populations.

Although CPSP is more likely after major surgery, it may also appear after more minor surgical procedures and may be particularly

52 52

www.yourexpertwitness.co.uk

disabling. A specific example of this would be complex regional pain syndrome (CRPS) which can have a dramatic impact on the lives of affected people who are often of working age. The degree to which pain interferes with function is an integral part of assessments made by experts in pain medicine. Indeed, the unavoidable inherent subjectivity associated with chronic pain conditions makes the opinion of an expert in pain medicine desirable and may assist in the assessing the profound functional impact that CPSP may have. Future research on CPSP will involve the use of pain trajectories to capture the dynamic nature of the pain. These will incorporate graphical representations of pain intensity scores over specific observation periods.

Separately, it is also worth noting that the presence of CPSP is not a specific indication of poor surgical technique per se and that many cases develop after a potentially flawless surgical procedure. Of specific relevance, experts in pain medicine may also be important in the defence of a claim related to CPSP in which surgical technique was satisfactory and the pain may be considered a well-known complication. q

BUILDING, PROPERTY & CONSTRUCTION

COMPUTER & MOBILE FORENSICS

CUSTODY & CHALLENGING BEHAVIOUR

EMPLOYMENT CONSULTANTS

ENERGY CONSULTANTS

www.yourexpertwitness.co.uk

53 53

GEOTECHNICAL CONSULTANTS

FORENSIC ACCOUNTANCY

HEALTH & SAFETY

FORENSIC SERVICES

MARINE SURVEYORS & CONSULTANTS

OFFSHORE ENGINEERING CONSULTANTS

WOOD & TIMBER

54 54

www.yourexpertwitness.co.uk

MEDICO-LEGAL EXPERTS ACCIDENT & EMERGENCY

ANAESTHESIA

CARDIOTHORACIC SURGEONS

DENTAL & ORTHODONTIC EXPERTS

CARDIOLOGISTS

www.yourexpertwitness.co.uk

55 55

LIVER SURGEONS

LUNG TOXICOLOGY FORENSIC MEDICINE

OBSTETRICS & GYNAECOLOGY

GENERAL SURGEONS

OCCUPATIONAL THERAPY HAND SURGEONS

56 56

www.yourexpertwitness.co.uk

ONCOLOGY

OPHTHALMIC SURGEONS

ORAL & MAXILLOFACIAL SURGEONS

PATHOLOGY

PHARMACOLOGY & PSYCHOPHARMACOLOGY ORTHOPAEDIC SURGEONS

www.yourexpertwitness.co.uk

57 57

PHYSICIANS

PLASTIC SURGEONS

PSYCHIATRISTS PSYCHOLOGISTS

58 58

www.yourexpertwitness.co.uk

RHEUMATOLOGISTS

SPEECH & LANGUAGE THERAPY

TOXICOLOGY

www.yourexpertwitness.co.uk

59 59

60 60

www.yourexpertwitness.co.uk