Your Expert Witness Issue 45 by DMMonline

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contents IN THIS ISSUE 7

Opening Statement

NEWS 9 Court reform continues, as NAO assesses progress so far 9 MPs attack claims limit increase 11 Travel sickness claims: costs to be capped 11 +RPH 2IÂ¿FH *'35 H[HPSWLRQ ULVNV QHZ :LQGUXVK VD\V /DZ 6RFLHW\ FORENSICS 12 5HJXODWRU FDOOV IRU FRPSOLDQFH ZLWK IRUHQVLFV VWDQGDUGV 12 *XLGDQFH SXEOLVKHG RQ EX\LQJ &&79 ROAD TRAFFIC ACCIDENT INVESTIGATION 13 5HFRQVWUXFWLQJ D URDG WUDIÂ¿F FROOLVLRQ Â± ZKDW WR ORRN IRU LQ DQ H[SHUW ENVIRONMENTAL ISSUES 14 Keeping compliant across the UK: some differences in environmental legislation

BUILDING & PROPERTY 15 (YHU\RQH LV DQ H[SHUW Â± VR ZK\ GR ZH QHHG DQ H[SHUW ZLWQHVV" 17 Building controllers welcome Hackitt report 17 .QRWZHHG KDYH VFLHQWLVWV IRXQG WKH VROXWLRQ" FORENSIC ACCOUNTACY 18 But for the accidentâ&#x20AC;¦ 20 :KDW LV WKH UROH RI WKH IRUHQVLF DFFRXQWDQW LQ IDPLO\ GLVSXWHV" TRANSLATING & INTERPRETING 22 ,7, WDNHV /RUG %XUQHWW WR WDVN RYHU LQWHUSUHWLQJ WHFKQRORJ\ 22 Institute members sound a positive note 22 thebigword takes up Heathrow interpreting role

CULTURAL, RELIGIOUS & ETHNIC ISSUES 23 Being different can bring advantages

A to Z WEBSITE GUIDE 21 Our A to Z guide to the websites of some of the countryâ&#x20AC;&#x2122;s leading expert witnesses.

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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

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MEDICAL ISSUES 25 Medical Notes

NEWS 27 Williams Review: Hunt accepts recommendations 29 Jail for fraudulent negligence claimant 29 Umbrella body prepares to publish private practice figures CHOOSING THE CORRECT EXPERT 31 The expert’s expertise must fit the bill – no matter who is paying it 31 Spine charity offers expert training 33 Some cases require a team of experts 33 Physios are the experts in soft tissue injury NOISE INDUCED HEARING LOSS 35 Tinnitus treatment varies across the country, survey finds 35 Workshop offers occupational noise solutions 35 Noise campaign makes final of national H&S awards ORTHOPAEDICS & ARTHROPLASTY 37 What can go wrong after a hip fracture? 38 Hip revision surgery is on the increase, researchers find 38 Partial knee replacements could be more common – and more successful

ORTHOTICS 39 Orthotics: what is it and how can it be applied in medico-legal work? 39 Compensation provides specialist orthosis PSYCHIATRIC & PSYCHOLOGICAL ISSUES 41 The role of the child psychologist in family law 42 Complex capacity and causation issues in injury claims 45 Conference connects brain and mind 45 Psychiatrist, assess thyself! PAIN 46 Opioid problem has a socioeconomic dimension – and a geographical one 47 The whiplash challenge 48 Discitis: more than just a back pain CARDIOLOGY 49 Heart attack patients taking longer to reach hospital PLASTIC, RECONSTRUCTIVE & HAND SURGERY 51 Surgeon tells patient: “I’ve done the operation wrong” 51 Plastic surgeons issue skin cancer advice

VEINS & VASCULAR INJURIES 53 Deep vein thrombosis: flights and plasters OBSTETRICS & GYNAECOLOGY 54 Valproate and pregnancy: regulator takes action 55 Midwives respond to child mortality study 55 Irish abortion vote prompts response from RCOG OPHTHALMOLOGY 57 APPG report highlights failings and points the way forward for eye care DENTISTRY & MAXILLOFACIAL SURGERY 59 Courts deal with spate of dental misdemeanours 59 Access to dentists could reduce paracetamol overdoses, study finds 60 Scottish dentists criticise lack of clarity in Improvement Plan www.yourexpertwitness.co.uk

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Opening Statement [JUNE SAW THE beginning of a series of hearings at the Grenfell Tower Inquiry involving expert witness

presentations. The list of expert witnesses appointed by Sir Martin Moore-Bick’s inquiry is long and features academics and practising engineers in a number of engineering disciplines, architectural experts, fire officers and, chillingly, an expert in human identification, among others. Grenfell has already led to the conclusion of one inquiry: the Review of Building Regulations by Dame Judith Hackitt. The conclusions of that review were quickly endorsed by LABC, the body representing local authority building controllers. • Grenfell is at the extreme of hearings involving buildings. Most building disputes centre on money and time taken. They range from a claim for defective workmanship made by a householder to contractual wrangles involving developers, main contractors, architects and, of course, clients. Accordingly, the extent of expert involvement can range from a simple report by a structural engineer to a full-on battle between two armies of experts. Attempts to take some of the court time (and consequently money) out of such disputes by alternative dispute resolution have had some success, but the tendency to rush to litigate remains. • The Technology and Construction Court is located in the Rolls Building, opened in 2011. It was among the first of a series of new and modern court buildings. The main thrust of HM Courts and Tribunal Service’s modernisation programme, however, is to introduce new technology into the working of the justice system – services such as online divorce petitions and probate. Progress made so far was the subject of a report by the National Audit Office, which gave HMCTS two cheers for its efforts. It is, the NAO concedes, a monumental task and there is likely to be slippage in the timing and a budgetary shortfall. A spokeswoman for the MoJ diplomatically dwelt on the positive aspects of the report. • In his Sir Henry Brooke Annual Lecture, Lord Burnett was enthusiastic about the modernisation process. He trod on the toes of court interpreters, however, when he predicted that machines would soon replace them. The Institute of Translation and Interpreting admonished him in an open letter. • New technologies are finding their way into most areas of litigation these days. Perhaps they are at their most exciting and science fiction-like in the area of forensic investigation. We have reported recently on such miraculous feats as recreating a car journey using the analysis of brake lights and satellite imagery, and the use of drones to identify a suspect from their height. Road traffic accident investigation is an arena where new technology is becoming widespread. The tape measure and skid mark analysis are being superseded by analysis of vehicles’ on-board computers. Modern incentives by insurance companies to have devices installed to analyse driving behaviour have added to the data available. • The most ubiquitous use of technology in the detection of crime continues to be the CCTV camera. They are to be found everywhere in our towns and cities. Many find them intrusive, but this writer for one always seeks out a parking space in view of a camera where possible. But there are rules and protocols to be followed when installing and operating them. The Surveillance Camera Commissioner has issued a buyer’s guide for SMEs thinking of installing them. • In 2014 we published our first overview of legacies in wills, expecting it to be a one-off feature. Three-and-a-half years later the now-regular series of articles and reports has taken on an identity of its own and become a supplement to Your Expert Witness. The plan is for it to continue that way. q

Ian Wild

Ian Wild, Director of Business Development Your Expert Witness

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Court reform continues, as NAO assesses progress so far [THE LATEST PHASE in the

modernisation of the judicial system was set in motion on 23 May, when the Courts and Tribunals (Judiciary and Functions of Staff) Bill was introduced in the House of Lords. The Bill is aimed at increasing efficiency by allowing greater flexibility to deploy the right judge to the right case. Appropriately qualified and experienced court and tribunal staff – authorised by the judiciary, and working under judicial supervision – will also be able to deal with routine matters, freeing up judges’ time to focus their expertise on matters that need it most. Announcing the move, Justice Minister Lucy Frazer said: “By enabling judges to hear cases in different courts and tribunals and giving court staff powers to deal with routine issues, we will make our courts more efficient and effective, while making better use of taxpayer’s money. “Our judiciary are highly valued and we want to make sure judges’ time and expertise is being used where and when it is most needed.” The Bill was welcomed by senior members of the judiciary. The Lord Chief Justice Lord Burnett and the Senior President of Tribunals Sir Ernest Ryder said in a joint statement: “We are pleased that the Government is showing a commitment to progressing reforms of the justice system. Enabling court staff to deal with these matters will allow judges to concentrate on concerns which need their skill.”

So far, the government has invested £1bn in reforming and modernising courts, which has already delivered a number of new digital services. They include a new in-court system which records the results of cases digitally and instantly and a digital programme which will allow defendants, victims, witnesses and professional users to share legal documents and cases online. In the civil courts, online services now include the ability to apply for a divorce online – which has cut errors in application forms from 40% to less than 1% – and apply for probate online, which has also cut errors, speeds up the process, and has a satisfaction rate of more than 90%. Earlier that month, on 9 May, the National Audit Office (NAO) published a report on the progress made so far by HM Courts & Tribunals Service (HMCTS) in court reform. It looks at progress made since 2016, when HMCTS set its programme of reform in motion. The report, Early progress in transforming courts and tribunals, recognised that HMCTS “…faces a daunting challenge in delivering the scale of technological and cultural change necessary to modernise the justice system and achieve required savings.” It is also “…behind where it expected to be at this stage of its ambitious reform programme.” The NAO warns: “Despite the best efforts of HMCTS and other parties to reduce risks in delivering this change portfolio – including extending the timetable from four to six years,

reducing the scope and scaling back planned benefits – delivering the reforms successfully remains extremely challenging. The NAO believes there is a significant risk that HMCTS will not be able to achieve all it wants within the time available.” A funding shortfall of £61m has been estimated for future years, assuming the Treasury agrees to the carrying forward of underspends from previous years. If not, the shortfall could be nearly three times that figure. The head of the NAO, Amyas Morse, said: “Modernising the justice system is an ambitious challenge. HMCTS has improved its approach, but overall it is behind where it expected to be and significant risks remain. Not only could these delay improvements being delivered on time, the tight timetable could also force HMCTS to make changes before fully understanding the consequences for the justice system. HMCTS must continue to adapt its approach if it hopes to successfully deliver a modern justice system that works better for everyone and achieve necessary savings for the taxpayer.” The report was accepted by HMCTS as being ‘helpful and constructive’. Its CEO, Susan Acland-Hood, said that it “rightly highlights the ambitious and transformational nature of the courts and tribunals reform programme.” She continued: “We are pleased that the NAO acknowledges our ‘early progress’ and its recommendations are already helping to strengthen the way we run the programme.” q

MPs attack claims limit increase [ON 17 MAY the House of Commons Justice Committee

published its report on the small claims limit for personal injury, in particular the government’s intention to raise the limit from £1,000 to £2,000 and to £5,000 for road traffic accident (RTA) related PI claims. They found that increasing the small claims limit creates ‘significant access-to-justice concerns’. While agreeing that the £1,000 small claims limit for PI should be increased to reflect inflation, the committee suggested that, by applying the Consumer Prices Index, an increase to around £1,500 might be appropriate in April 2019. In the summary of its report, the committee said: “We are deeply unimpressed by the inability of the Ministry of Justice to quantify the impact of raising to £2,000 the small claims limit for employer liability and public liability claims; given the potential complexity of these claims and the role of litigation in maintaining safe and healthy workplaces, we recommend that they be subject to a small claims threshold of £1,500.” The committee was also unconvinced about the extent of fraud in PI claims, as claimed by both government and the insurance industry.

“We are troubled by the absence of reliable data on insurance fraud and we recommend that the government work with the Association of British Insurers to develop a more nuanced approach that avoids conflating unexpected consumer behaviour with fraudulent activity.” It continued: “While fraudulent and exaggerated claims must be prevented, the common law right to compensation for negligence applies regardless of the value of the claim. We recommend that the government should not increase the small claims limit for RTA PI claims to £5,000.” The committee’s chair, Bob Neill MP, said: “Access to justice, including the right of access to the courts, is a cornerstone of the rule of law, but these reforms risk putting that right in doubt. “We share strong concerns that were raised during our inquiry on this issue, including concerns about the financial and procedural barriers that claimants might face. “The small claims limit for personal injury should not be increased unless ministers can explain how it will make sure that access to justice is not affected.” q www.yourexpertwitness.co.uk

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Travel sickness claims: costs to be capped [NEW RULES to fix the legal costs that can be claimed in package holiday sickness claims will close a ‘loophole’ which the travel industry believes has helped fuel a rising number of claims. Hitherto, legal costs in overseas package travel claims were not controlled, meaning costs for tour operators could spiral out of all proportion to the damages claimed. That led to many operators settling holiday sickness claims out of court rather than challenge them. Announcing the move in April, Justice Minister Rory Stewart said: “Claiming compensation for being sick on holiday when you haven’t been is fraud. This damages the travel industry and risks driving up costs for holidaymakers. This behaviour also tarnishes the reputation of British people abroad. That is why we are introducing measures to crack down on those who engage in this dishonest practice.” While uncontrolled costs have discouraged tour operators from challenging claims, they have also emboldened claims management companies to encourage tourists to pursue holiday sickness compensation, with touts reportedly operating in European resorts. Responding to the announcement, ABTA chief executive Mark Tanzer said: “False sickness claims have been costing the travel industry tens of millions of pounds and damaging British tourists’ reputation abroad. “Since 2013 legal fees for personal injury claims which occurred in the UK have been capped, which is why, in partnership with claims management companies, firms of solicitors have been targeting customers who have taken an overseas all-inclusive package holiday. This has contributed to a 500% increase in sickness claims at a time when actual incidents reported by customers in resorts have either remained stable or declined.”

Home Office GDPR exemption risks new Windrush, says Law Society

Package holiday claims have now been brought within the fixed recoverable costs regime. That means tour operators would pay prescribed costs depending on the value of the claim and length of proceedings, making defence costs predictable and assisting tour operators to challenge bogus claims. Manchester-based law firm Horwich Farrelly has been working with the travel industry to investigate potentially fraudulent claims, as well as provide a robust defence for any cases taken to court. As a result, it has successfully defended more than 2,000 claims. Its head of counter-fraud, Mark Hudson, commented: “Unscrupulous claims companies are fooling travellers into thinking they can win back the cost of their holiday, and often more than that, by making bogus claims for holiday sickness. However, make no mistake, these companies are in fact helping British tourists commit fraud. “These types of claims, if successful, are typically worth several thousands of pounds, so the savings to the travel industry are substantial. We are delighted with the results we have achieved working alongside the travel industry to ensure that any holidaymaker or professional enabler making a dishonest claim will pay the price.” q

[THE Law Society of England and Wales has criticised the

decision to exempt the Home Office from data access rules in the new Data Protection Act, which implements the widely-publicised GDPR. The move will inevitably lead to miscarriages of justice, the society has warned. Law Society president Joe Egan said the immigration exemption in the legislation stripped accountability from Home Office decision making. “Since legal aid was removed for most immigration cases in 2012, it has become increasingly difficult to challenge immigration decisions – decisions which evidence shows are often incorrect,” he said. “Subject access requests are the final recourse for people trying to deal with a complex, opaque and unaccountable immigration system. “New Home Office figures show tens of thousands of people every year are forced to submit requests simply to access information held about them. Now this last avenue has been removed, the large number of people who relied on this right will potentially be denied justice under this new law.” Commenting on how past mistakes were being repeated, he said: “The lack of transparency in Home Office decision-making has already led to the Windrush scandal. Instead of learning from those mistakes, the potential for another scandal has become even greater. The GDPR is about increasing the rights of people to access and control their own personal data. It is incredibly disappointing that, instead of protecting these rights, they are being thrown out. “Decisions which have a huge impact on people’s lives can now be made behind closed doors with no justification or accountability. There is real risk of harm coming to those the immigration system is supposed to be serving.” q www.yourexpertwitness.co.uk

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Regulator calls for compliance with forensics standards [FORENSIC SCIENCE REGULATOR

Dr Gillian Tully used the occasion of her annual conference in May to call on all parts of the criminal justice system to make sure standards in forensic science are met. At the conference Dr Tully brought together experts from all fields of the system, looking at how the regulator, the courts, the CPS, police and professionals can work together to ensure compliance with the standards. In her speech, Dr Tully said: “I will continue to support and challenge organisations to achieve and go beyond mere compliance with standards. We want to move forensic science from just about functional to excellent, where we have the best scientists using robust science in the interests of justice and making the most of the digital future.” Another speaker at the conference was the Rt Hon Sir Brian Leveson, who echoed Dr Tully’s words. “Those of us who work in an area where scientific evidence matters are rewarded by being involved with some of the most fascinating and engaging parts of criminal justice,” said Sir Brian. “But to ensure we have effective scrutiny and to ensure that the public retains confidence in the system we must make sure we see the regulations and rules as supportive and not superfluous.”

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Chief Crown Prosecutor Adrian Foster highlighted the risk that unsound science could be accepted as expert advice in courts, particularly as much of the scientific evidence is outside the knowledge of most lawyers.

However, the regulator also highlighted that the UK has one of the strongest regulatory frameworks for forensic science in the world, and that a high level of compliance has already been achieved. q

Guidance published on buying CCTV [THE Surveillance Camera Commissioner has published a

Buyer’s Toolkit, to provide guidance for the non-expert who is thinking about buying a surveillance camera system and wants to maximise their chance of success – and minimise risk – by observing the principles of good practice. The primary target audience is SMEs (up to 250 staff) and micro-businesses (up to nine staff). However, the five-stage approach in the document is guidance which would be valuable for any organisation considering the use of surveillance cameras. Following the guidance will help businesses to make informed decisions about whether surveillance can be justified as a solution to their problems. If deploying surveillance cameras is necessary, then the toolkit is full of advice and tips on how to get the best out of your prospective suppliers. The toolkit has been developed under the National Surveillance Camera Strategy for England and Wales to help security industry suppliers demonstrate to their customers that they understand and follow good practice and legal obligations. For relevant authorities under Section 33(5) of the Protection of Freedoms Act 2012, and for larger organisations, readers may want to refer to the Surveillance Camera Commissioner’s Passport to Compliance. q

Reconstructing a road traffic collision – what to look for in an expert

MARK CROUCH, Principal Consultant with Forensic Collision and Investigation Ltd, explains the fast-developing world of collision investigation

[INSTRUCTING AN EXPERT is sometimes

a tricky choice. How do you know who to trust with a high-value catastrophic loss case or a Death by Dangerous Driving matter? After all, standing on the steps of the court would be a bad time to find out you have chosen poorly! I am sure that we have all heard of – or even have personal experience of – a case being constructed around a certain set of parameters, only to find that the expert has had to concede a number of critical points upon which the case hinged. Why is that so common – and what can you do about it? Firstly, it is important to understand where your expert’s experience is likely to have come from. Typically, experts in the field of road traffic collision investigation come in two distinct categories: academics or retired experienced police officers. The academic route often deals with the complex analysis and mathematical parts of the discipline exceptionally well. Reports are filled

“

Typically, experts in the field of road traffic collision investigation come in two distinct categories: academics or retired experienced police officers. But what if you could have both?

”

full of research papers and robust discussions of physics, however, they are often a little underwhelming with regard to scene process, evidence and that ‘feel’ for a live collision scene. Alternatively, the police officer route – with an understanding of a live collision scene that is unparalleled, a strong knowledge of the law and a confidence in giving live evidence, but is perhaps a little vague when it comes to propping up their opinion with cutting-edge research or mathematical modelling. But what if you didn’t have to choose and could actually have both? There is a huge strength in having an expert who has not only been at the scene of countless road traffic collisions and been responsible for the collection of the evidence, but has also written the academic papers that support the advancements of knowledge in the field. That is exactly what we at FCIR pride ourselves on! We have experts who can demonstrate that, not only have they ‘seen that happen in real life’, they have also published the academic material that is now being taught to collision investigators in the field. That is what sets FCIR apart. But it doesn’t stop there. With advancements in vehicle-based technology marching on at a faster rate than ever, the role of a collision investigator is moving away from the conventional measurement of skid marks to interrogating vehicle airbag modules. Measuring the locus of a collision is now less about the use of a tape measure and more about state-of-the-art 3D laser scanning; and demonstrating complex collisions to a court is less about explaining with toy cars and diagrams and more about 3D animations. CCTV has advanced in leaps and bounds from the simple ‘say what you see’ approach

“

Choosing the right expert is essential, with significant consequences if the choice is the wrong one.

”

to forensic analysis down to the millisecond. FCIR have specialist equipment to allow for such analysis: indeed, we were instrumental in the development of the Home Office equipment used by the police. When establishing whether or not a motorcycle headlamp was illuminated, why instruct an expert who would use an optical microscope only, when a scanning electron microscope allows you to scientifically analyse the fracture face of a bulb filament? Again, FCIR possess that skill set. Those are the types of questions that should be asked when instructing an expert, to see if they are remaining current and extracting the full amount of information for you. Indeed, it could be the expert you will be meeting from the ‘other side’! Choosing the right expert is essential, with significant consequences if the choice is the wrong one. Ensuring that justice is done, and that the claimants’ and defendants’ situations are accurately put, is the keystone of FCIR’s principles. It is to that end that we offer a freeof-charge initial review into any matter that our clients may have, so that everyone is in a clear position from the beginning. q www.yourexpertwitness.co.uk

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Keeping compliant across the UK:

some differences in environmental legislation by SIMON KNOTT, managing director of environmental consultancy Naturally Compliant

[

IN COMPARISON WITH many other parts of the world, the UK has a commendable record of protecting the environment from damage and for working constructively with engineers and contractors to mitigate the effects of necessary operations. The relevant legislation is by its nature complex, and busy construction professionals engaged in engineering activities need to be up to speed with what they can and cannot do while remaining compliant with the regulations. The picture is complicated by the fact that, since devolution of powers to the nations of the UK – a process which has accelerated in recent years – there are significant differences of approach between England and Wales on the one hand, and Scotland on the other. In this article – which is for the purpose of information only and does not constitute legal advice – I have attempted to illustrate some of the main differences between the countries and to remove potential confusion over definition and context.

Working on water

In Scotland, working on or near water is covered by the Water Environment (Controlled Activities) (Scotland) Regulations 2011 (as amended), while on the rest of the UK mainland the Environmental Permitting (England and Wales) Regulations 2016 pertain. In England and Wales, for engineering purposes, works on or near a main river will be completed under an exemption, a standard

rule permit or bespoke permit. The Environment Agency has clearly defined what a main river is, through issuing an official map to make the information accessible. However, any engineering work that has the potential to obstruct flow in an ordinary watercourse requires consent from a flood defence consenting authority. An ordinary watercourse is defined as every river, stream, ditch, drain, sluice, sewer (other than a public sewer) and passage through which water flows and which does not form part of a main river. In Scotland, work on any surface water on a 1:50,000-scale map requires either registration, a simple licence or a complex licence. If, however, the water in question is not on a 1:50,000-scale map – for example a small burn which needs to be bridged – contractors do not need to contact the Scottish Environmental Protection Agency, but they do still have to follow the general binding rules for their activity, or they may be deemed non-compliant. The Scottish system is in some ways preferable, since everyone is working to the same guide-book. In England, contractors have to contact the Environment Agency or the flood defence consenting authority – usually the council – and interpretations of the regulations by individual council officers can vary.

Controlling pollution

There are differences, too, in the wording of the regulations regarding pollution. In Scotland the Controlled Activities Regulations refer to a pollution control regime where activities are controlled by general binding rules, registrations, simple licences and complex licences. Importantly, that applies to the whole water environment and, unlike some engineering activities, authorisations may be required for discharges to a receiving body not on a 1:50,000-scale map. In England and Wales the Environmental Permitting Regulations are again relevant, however your activity may be authorised by a regulatory position statement, an exemption, a standard rules permit or a bespoke permit. The receiving body is defined as surface waters – including rivers, streams, estuaries, lakes, canals and coastal waters – or onto or into the ground.

Protection of wildlife

In regard to protected species, the Wildlife and Countryside Act covers the whole of the UK. However, through various Acts it is implemented differently. One of the major differences is that the Scottish wording of the Act often includes the word ‘recklessly’, for example: "Subject to the provisions of this Part, if any person intentionally or recklessly kills, injures or takes any wild bird; takes, damages, destroys or otherwise interferes with the nest of any wild bird while that nest is in use or being built…" This means that an offence is committed if harm is done – whether or not there was prior intent to harm. In both cases the legislation is well-intentioned and should be embraced by responsible professionals in the construction sector, for whom best practice should in any case be second nature. A breach of the regulations – even if unintentional – can have ramifications for companies far beyond the penalties imposed by the regulatory agencies. In our environmentally-aware and hyper-connected age, reputations built over years can be damaged in a day. No working contractor can know the ins and outs of all compliance requirements and that is why it is imperative to seek professional advice at the earliest stage in any proposed project, large or small. q

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Everyone is an expert â&#x20AC;&#x201C; so why do we need an expert witness? KEITH MCMILLAN, Chartered Construction Manager and expert in FRQVWUXFWLRQ GLVSXWHV ZLWK 0F0LOODQ $VVRFLDWHV UHÃ&#x20AC;HFWV RQ WKH particular nature of construction claims

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WLPH LQ /RQGRQ DQG IXUWKHU DÂ¿HOG Â± HOLFLWHG DQ XQH[SHFWHG TXHVWLRQ IURP RQH RI WKH VHGHQWDU\ regulars, each an expert on all matters known to mankind. A brief report on the weekâ&#x20AC;&#x2122;s generalities brought forth the comments: Â³7KRXJKW \RX ZHUH D SURMHFW PDQDJHU DQG FODLPV FKDS QRW DQ H[SHUW"Â´ DQG Â³6R ZKDW NLQG RI H[SHUW DUH \RX DQG ZK\"Â´ 2Q UHÃ&#x20AC;HFWLRQ , VXJJHVW WKDW FRPSDUHG WR other forms of dispute resolution, an expert witness approach is ideally suited to the construction industry. Construction is so costcentric; often, time is of the essence, and socalled standard contracts are amended to suit FOLHQW UHTXLUHPHQWV :H Â¿QG RQ VPDOOHU FRQWUDFWV FODLPV DULVH from factual matters, faulty workmanship or costs issues. They are passed to the partyâ&#x20AC;&#x2122;s solicitors, who appoint a specialist to prepare

a claim addressing their clientâ&#x20AC;&#x2122;s grievances. The other party then reciprocates. Claims raised during the work further delay progress and naturally promote a more acrimonious atmosphere. Adjudication has sought to address this, but has certainly not eradicated it. On mega projects, particularly PPP and PFI contracts, disputes can be extremely complicated, with the wording within the many hundred pages of bespoke contracts UHTXLULQJ IRUHQVLF DWWHQWLRQ ,Q SODFH RI WZR FODLPV VSHFLDOLVWV D WHDP RI WHFKQLFDO Â± DQG DERYH DOO Â¿QDQFLDO Â± H[SHUWV LV DVVHPEOHG and a few days becomes months. The very nature of the construction industry means at times disputes are inevitable and the appointment of a third party becomes QHFHVVDU\ 6XUHO\ DSSRLQWPHQW RI DQ H[SHUW EHIRUH D FODLPV VSHFLDOLVW PDNHV PRUH VHQVH" 1RW RQO\ LV LW JHQHUDOO\ TXLFNHU DQG FKHDSHU

EXW EHLQJ UHVSRQVLEOH Â¿UVW DQG IRUHPRVW WR the court, it can afford easier acceptance of adverse decisions. $ UHSRUWÂ¶V FRQFOXVLRQV PXVW UHÃ&#x20AC;HFW GLOLJHQFH in preparation and establish whether contract UHTXLUHPHQWV ZHUH PHW SURFHGXUHV IROORZHG competence of workmanship displayed and timeous compliance with programme achieved, or not. It must be easily understood and able to stand as a vital element of any VXEVHTXHQW OLWLJDWLRQ Not a claim to be disputed and argued DG LQÂ¿QLWXP, but an easily understood document demonstrating clear, concise conclusions. T

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Building controllers welcome Hackitt report [THE FINAL REPORT of the Review of Building Regulations and

Fire Safety by Dame Judith Hackitt has been welcomed by LABC, the body representing local authority building control and more than 3,000 public service building surveying staff. LABC has pledged to help to implement all Dame Judith’s recommendations on buildings in the scope of the review. LABC’s chief executive Paul Everall said: “It is clear that allowing developers to choose their own regulators has to stop. Dame Judith has a clear way forward which LABC supports fully and we have already put in place the steps needed to move to a completely independent and competent regulator. Mr Everall said he has also written to ministers urging them to adopt all of the review’s recommendations as quickly as possible,

saying: “We’re aware of the criticisms of the report and its recommendations and we believe that this should not distract from the speedy and practical implementation of the proposals. We agree that the system needs a radical overhaul and there is no time to lose.” One of the review’s recommendations was the establishment of a Joint Competent Authority comprising LABC, the HSE and fire authorities. “We believe that closer ties with the fire services and the HSE through the proposed Joint Competent Authority will benefit standards and enforcement,” said Mr Everall. “We also agree with Dame Judith that a ‘whole lifecycle’ view of a building fits with reality and will control the risk of a building’s design strategy being compromised by later works or poor maintenance.” q

Knotweed: have scientists found the solution? [FOLLOWING EXTENSIVE TRIALS, a team of bioscientists at Swansea University have developed an effective way to tackle Japanese knotweed, listed by the World Conservation Union as one of the world’s worst invasive species and an issue of huge concern to householders in the UK. In 2016, Professor Dan Eastwood and Dr Dan Jones completed the first phase of the world’s largest Japanese knotweed field trial. After five years of intensive research they have defined a patent on one aspect of potential Japanese knotweed control treatment known as ‘The 4-Stage Model’. Said Professor Eastwood: “Basically, we’re discovering how best to tackle invasive plants in real-world conditions, informed by the evidence of what actually works. We began focusing on knotweed at a time when there was a great deal of hysteria surrounding it. At the time, most information for people affected by the plant was largely based on anecdote. That led to unscrupulous companies offering expensive and ineffective treatment solutions. It was incredible to us that there was no long-term, large-scale field trial analysis of the treatment methods used to control Japanese knotweed.” Over five years Professor Eastwood and his team tested all 19 of the main physical, chemical and integrated methods of controlling Japanese knotweed in the UK – working with the biology of the plant to inform their treatment approaches. Their research tested more methods of control than any other invasive species trial ever conducted, allowing them to replace outdated guidance based on short-term experiments and anecdotal information. Dr Jones added: “Claims made by companies stating that they could eradicate Japanese knotweed using herbicides in short spaces of time have now been proven to be false, based on our experiments. Furthermore, we have shown applying the wrong herbicides at the wrong time of the year leads to greater herbicide use and environmental impacts. The 4-Stage Model

that we have developed links herbicide selection and application with the seasonal surfacerhizome flows in the knotweed plant.” For most people, Japanese knotweed represents a nightmare – particularly if they are trying to sell their home. However, from an ecological perspective Professor Eastwood can’t help but be impressed by it. “Japanese knotweed is an extraordinary plant,”

he said. "In Japan it often grows in the gravel around volcanoes and can be buried during eruptions and landslides, killing the aboveground parts of the plant. However, it is not dead but rather dormant, awaiting more favourable conditions. Although many see Japanese knotweed as a scourge, as a biologist you have to admire its resilience and the adaptations that has made it the pernicious weed it is.” q

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But for the accidentâ&#x20AC;¦ By CHRIS MAKIN FCA FCMI FAE QDR MCIArb Chartered Accountant, Accredited Civil Mediator and Accredited Expert Determiner

>LIABILITY AND CAUSATION are matters for lawyers, but there is then

the problem of what a claimant could be expected to have earned but for the 57$ WKH FOLQLFDO QHJOLJHQFH RU WKH FULPLQDOO\ LQÃ&#x20AC;LFWHG LQMXU\ (DUO\ HGLWLRQV RI .HPS .HPS KDG D FKDSWHU RQ KRZ WR FDOFXODWH WKH employed personâ&#x20AC;&#x2122;s earnings for special damages to trial date and to provide D PXOWLSOLFDQG IRU 2JGHQ EXW LW FRQFOXGHG ZLWK WKLV Â³7KHUH PD\ KRZHYHU EH PDQ\ LPSRQGHUDEOHV LQ WKH FDVH RI WKH VHOI HPSOR\HG Â´ How true! But practitioners need more guidance than this. 7KLV ZDV EURXJKW KRPH WR PH TXLWH IRUFLEO\ ZKHQ VRPH \HDUV DJR , JDYH H[SHUW HYLGHQFH IRU WKH FODLPDQW ZKR KDG EHHQ LQMXUHG LQ DQ 57$ 7KLV PDQ was a severe workaholic. He ran a 180-acre farm, with no help. He dug ditches, laid hedges and harvested his own crops. He also had a plant hire business where he was the main JCB operator. He dealt in plant, anything from lawn-mowers to roadsweepers and mobile cranes. He was renovating KLV *UDGH ,, OLVWHG PDQVLRQ +H FRQYHUWHG KLV GLVXVHG IDUP FRWWDJHV LQWR homes for rent, and his disused farm buildings into science parks. 7KH GLIÂ¿FXOW\ ZDV WKDW KLV DQQXDO DFFRXQWV VKRZHG ORZ HDUQLQJV EHFDXVH he had taken so much time away from his core business to renovate his mansion and convert buildings for future rental income. Livingstone v Rawyards Coal Co [1880] 5 AppCas 25,39 (see Kemp at 1-009.1) tells us that the court must restore the status quo ante so far DV PRQH\ PD\ DOORZ Â± EXW LQ WKLV VLWXDWLRQ KRZ FRXOG WKDW EH GRQH" 7KH claimant still had his business acumen, his contacts and his farm, but he ZDV QR ORQJHU DEOH WR GLJ GLWFKHV GULYH D -&% RU UHSODFH Ã&#x20AC;RRUV DQG URRI WLOHV

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The expert for the defence looked at past accounts, saw that earnings were low, and based loss of earnings on those low annual amounts. I disagreed, since this approach had no regard for the value of the house UHQRYDWLRQ WKH ODERXU QRZ UHTXLUHG RQ WKH IDUP RU WKH EHQHÂ¿W RI EXLOGLQJ XS IXWXUH UHQWDO LQFRPH 0\ DSSURDFK ZDV WR TXDQWLI\ WKH ORVV RQ WKH amount it would take to employ a labourer to perform the physical tasks which the claimant could no longer do. Buy him a man, and the status quo would be restored. At the end of a three-day hearing, the judge asked both counsel to provide closing submissions in writing overnight. The claimantâ&#x20AC;&#x2122;s counsel came to PH DQG DVNHG IRU WKH SUHFHGHQWV IRU WKH TXDQWLÂ¿FDWLRQ PHWKRG , KDG XVHG Panic! I hadnâ&#x20AC;&#x2122;t seen any precedents and had just used common sense to understand the business. 7KDW QLJKW , UDQJ 'DYLG .HPS 4& DW KRPH , NQHZ KLP KDYLQJ ORRNHG DIWHU WKH WD[ FKDSWHU LQ .HPS IRU VRPH \HDUV DQG DQRWKHU 4& DQG ERWK said that there was no precedent, but that my methodology was sound. And the judge agreed, to the penny. )URP WKLV FDPH WKH VXJJHVWLRQ ZLWK ZKLFK 'DYLG .HPS UHDGLO\ DJUHHG WKDW , VKRXOG ZULWH D QHZ FKDSWHU IRU .HPS .HPS RQ KRZ WR TXDQWLI\ ORVV of earnings for the self-employed and family company director. It appeared in Kemp for some years, but has now been subsumed in the re-write which WRRN SODFH DIWHU 'DYLG .HPSÂ¶V GHDWK ,W UDQ WR RQO\ QLQH SDJHV EXW JDYH D

simple explanation of the factors one should consider, such as: Â&#x2021; *DLQ D WKRURXJK XQGHUVWDQGLQJ RI WKH EXVLQHVV Â± WKLV EXVLQHVV LQ LWV â&#x20AC;¢ XQLTXH VHWWLQJ Â&#x2021; :KDW DUH WKH Â¿[HG DQG YDULDEOH H[SHQVHV" +RZ ZRXOG WKH\ YDU\ â&#x20AC;¢ ZLWK UHYHQXH" Â&#x2021; 'R WKH SDVW DFFRXQWV VKRZ D UHOLDEOH SDWWHUQ RI JURVV SURÂ¿W PDUJLQV" Â&#x2021; :KDW DUH WKH LQWHUQDO OLPLWLQJ IDFWRUV" &DSDFLW\ RI PDFKLQHU\ DQG RI â&#x20AC;¢ SUHPLVHV DELOLW\ RI WKH RZQHU WR PDQDJH DOO WKH VWDII" Â&#x2021; :KDW DUH WKH H[WHUQDO OLPLWLQJ IDFWRUV" :KDW LV WKH VL]H RI WKH â&#x20AC;¢ PDUNHW DQG WKH VKDUH ZKLFK WKLV EXVLQHVV FRXOG KRSH WR ZLQ" :KDW â&#x20AC;¢ LV WKH FDWFKPHQW DUHD" 'HOLYHU\ GLVWDQFH" &RXOG WUDGH EH LQFUHDVHG â&#x20AC;¢ E\ LQWHUQHW VDOHV" â&#x20AC;¢ What competition is faced, bearing in mind that competitors will try to â&#x20AC;¢ LQFUHDVH WKHLU PDUNHW VKDUH LQ VLPLODU ZD\V" Â&#x2021; 7HFKQRORJLFDO FKDQJH DUH WKH SURGXFWV IDFLQJ REVROHVFHQFH" 2U DUH â&#x20AC;¢ PDQXIDFWXULQJ FRVWV EHLQJ XQGHUFXW E\ &KLQHVH LPSRUWV" â&#x20AC;¢ Hours in the day: just how much time could the claimant have spent in â&#x20AC;¢ the business, allowing for sleeping, eating, travel to work, leisure time, â&#x20AC;¢ ',< DQG KROLGD\V" ,V WKHUH D ',< FODLP ZKLFK FRXOG QRW EH VXSSRUWHG â&#x20AC;¢ DIWHU WKH KRXUV WKH FODLPDQW VD\V KH ZRXOG KDYH VSHQW LQ WKH EXVLQHVV" Â&#x2021; 6HDVRQDO YDULDWLRQV DQ LFH FUHDP YHQGRU DW WKH VHDVLGH PD\ KDYH â&#x20AC;¢ ORVW PRVW RI D \HDUÂ¶V SURÂ¿W LI LQMXUHG DW :KLWVXQWLGH EXW QRWKLQJ LI LQMXUHG â&#x20AC;¢ in November. Â&#x2021; 5HJUHVVLRQ RI WUDGH LI D FODLPDQW LV DZD\ IURP KLV EXVLQHVV IRU VHYHUDO â&#x20AC;¢ months, the loss of earnings would continue until he had re-won or â&#x20AC;¢ replaced his lost customers, which could take several months after â&#x20AC;¢ physical ability is restored. â&#x20AC;¢ Financial strain: it is surprising how many owners of small businesses â&#x20AC;¢ LQWURGXFH WKHLU RZQ PRQH\ LQWR D EXVLQHVV WR NHHS LW JRLQJ /RRN RXW IRU â&#x20AC;¢ RYHUGUDIWV LQFUHDVLQJ FUHGLWRUV SURSULHWRUÂ¶V FDSLWDO UHGXFLQJ Â± DQG â&#x20AC;¢ consider whether an Ogden multiplier should recognise that the â&#x20AC;&#x2DC;life â&#x20AC;¢ expectancyâ&#x20AC;&#x2122; of the business may be much shorter than the working â&#x20AC;¢ lifetime of the owner. Â&#x2021; 'R QRW FRQIXVH SURÂ¿W ZLWK GUDZLQJV LW LV DOVR VXUSULVLQJ KRZ PDQ\

â&#x20AC;¢ lawyers think that the amount drawn out of a business is the measure of â&#x20AC;¢ HDUQLQJV 7KH SURÂ¿W RI D EXVLQHVV PD\ EH Â&#x2026; DQG GUDZLQJV â&#x20AC;¢ Â&#x2026; RU SURÂ¿W Â&#x2026; DQG GUDZLQJV Â&#x2026; ,Q ERWK FDVHV WKH â&#x20AC;¢ FODLP PXVW EH EDVHG RQ SRVW *RXUOH\ HDUQLQJV RI Â&#x2026; Â± WKRXJK â&#x20AC;¢ with the second example, one should worry about the life expectancy â&#x20AC;¢ of the business. There is more, but this gives an indication of the matters which an H[SHULHQFHG IRUHQVLF DFFRXQWDQW PXVW FRQVLGHU ZKHQ TXDQWLI\LQJ ORVV RI past earnings and a multiplicand for future lost earnings in personal injury, clinical negligence and fatal accident cases. If you want a copy, please ask. It is not the case that a forensic accountant is needed in every personal injury case, but where the claimant was self-employed or a key director in a family business, the â&#x20AC;&#x2DC;many imponderablesâ&#x20AC;&#x2122; need to be considered by an expert who really understands business. T

About Chris Makin >CHRIS MAKIN is a chartered accountant with a vast range of

H[SHULHQFH Â¿UVWO\ DV D JHQHUDO SUDFWLWLRQHU DQG WKHQ IRU ZHOO RYHU years as a forensic accountant and expert witness. He is also the former 1DWLRQDO +HDG RI /LWLJDWLRQ 6XSSRUW LQ D QDWLRQDO Â¿UP +H DFWV IUHTXHQWO\ for claimants/applicants, defendants/respondents and as a single joint expert and has given expert evidence over 70 times. )RU PDQ\ \HDUV &KULV ZDV D FRQWULEXWRU WR WKH .HPS .HPS publication The Quantum of Damages +LV FKDSWHU RQ /RVV RI 3URÂ¿WV IRU WKH 6HOI (PSOR\HG )DPLO\ &RPSDQ\ 'LUHFWRU LV DQ DGPLUDEOH VXPPDU\ RI KRZ EXVLQHVVHV ZRUN DQG LV RI EHQHÂ¿W WR ODZ\HUV LQ PDQ\ Â¿HOGV not just personal injury. Although it is now out of print, Chris is happy to SURYLGH LW IUHH RQ UHTXHVW Chris offers an initial review of any case, without obligation to instruct him. If the matter doesnâ&#x20AC;&#x2122;t proceed, he makes no charge. He destroys the papers and he doesnâ&#x20AC;&#x2122;t even sulk! If the matter does proceed, the time VSHQW RQ LQLWLDO UHYLHZ LV LQFOXGHG LQ WKH IHH TXRWHG 2QO\ ZKHQ WHUPV DUH agreed is a contractual relationship established. Chrisâ&#x20AC;&#x2122;s main area of practice now, however, is as a commercial mediator, with expert determinations and forensic assignments added for good measure. Mediation is now a very important stage in the litigation process and it usually results in a prompt settlement to even the most complex and highly charged disputes. Chris has mediated some very challenging FDVHV Â± LQFOXGLQJ VRPH ZKHUH WKH SDUWLHV HYHQ UHIXVHG WR VLW LQ WKH VDPH URRP DW WKH VWDUW Â± \HW KLV SHUVRQDO VHWWOHPHQW UDWH LV UXQQLQJ DW about 80%. Chris Makin might just be the mediator who could help you and your FOLHQWV WR UHVROYH HYHQ WKH PRVW GLIÂ¿FXOW OLWLJDWLRQ FDVHV As a mediator he has dealt with many types of disputes, including business purchase and sale, partnerships, contractual failings and SURIHVVLRQDO QHJOLJHQFH Â± DOO WKH NLQGV RI GLVSXWH \RX ZRXOG H[SHFW DQ accountant to be able to help with. But he has also mediated in disputes LQ WKH Â¿HOGV RI FRQVWUXFWLRQ VXE FRQWUDFWLQJ ULJKWV RI ZD\ ERXQGDULHV legal fees, playwrights, fraud, housing disrepair, expensive motor cars, horrendous family probate disputes...and many more. One of his specialisms is housing disrepair. Many public housing bodies and their tenants have chosen to appoint Chris Makin as their mediator, because he can do much to help both parties in this GLIÂ¿FXOW DUHD T

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What is the role of the forensic DFFRXQWDQW LQ IDPLO\ GLVSXWHV"

DAVID BUNKER, Chartered Accountant, Arbitrator and Mediator, sheds some light on a thorny issue

>AT FIRST SIGHT WKH ZKROH DUHD RI IDPLO\ GLVSXWHV Â± ZLWK WKHLU

LQÃ&#x20AC;DPHG SDVVLRQ DQG VWUHQJWK RI IHHOLQJ Â± DQG WKDW RI IRUHQVLF accounting, with its detached precision, would seem antithetical. It is, however, the very detachment that the discipline of forensic accounting can bring to an overheated situation that is its strength. From my experience of family disputes, either as an independent expert appointed by the court or acting on behalf of an involved party, it LV WKLV TXDOLW\ RI FRRO KHDGHGQHVV WKDW LV PRVW LQ GHPDQG The role falls into two clear phases: establishing the historical Â¿QDQFLDO SRVLWLRQ DQG SURYLGLQJ FODULW\ RI WKH SRVLWLRQ JRLQJ IRUZDUG

7KH KLVWRULFDO Â¿QDQFLDO SRVLWLRQ

It is essential for all interested parties to investigate and establish WKH SUHFLVH VWDWH RI WKH IDPLO\ Â¿QDQFHV ,W PD\ EH WKDW RQH RU RWKHU SDUW\ KDV GHFHLYHG RWKHU SDUWLHV Â± RU LQGHHG WKHPVHOYHV Â± DV WR WKH UHDO SRVLWLRQ 7KH forensic accountant has a role in achieving a level of clarity and therefore parity for all parties involved. 4XLWH KRZ IDU WR JR EDFN DQG ZKDW OHYHO RI detail to go into is, essentially, a judgement call for the forensic accountant to make on a case-by-case basis. ln my experience, parties

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often want to go back much further than it is realistic or practical to go; but on the other hand I have a professional duty to pursue all relevant lines of investigation to their logical conclusion. The circumstances, and the need to investigate historic detail, will vary from case to case.

The position going forward

2QH DVSHFW RI DQ\ IDPLO\ GLVSXWH Â± LQ PDQ\ FDVHV WKH SULPDU\ RQH Â± LV WKH GLYLVLRQ DQG GLVWULEXWLRQ RI ERWK Â¿QDQFLDO DVVHWV DQG LQFRPH HDUQLQJ SRWHQWLDO ,I HYHU\ SDUW\ FRXOG DFKLHYH WKHLU Â¿QDQFLDO REMHFWLYHV ZLWKRXW DQ HOHPHQW RI VDFULÂ¿FH IURP DQRWKHU SDUW\ WKHQ WKH VFRSH IRU KLJK level dispute would be hugely reduced. In my experience the scope for consensual decisions about future distributions is greatly advanced once the forensic accountant has been able to set out in concise and compelling detail the assets and future income available to the parties in dispute. In many cases the answer to items in dispute EHFRPHV DOPRVW VHOI HYLGHQW RQFH WKH Â¿QDQFLDO information is cogently presented. These essential principles of the role KROG WUXH ZKHWKHU WKH GLVSXWH LQ TXHVWLRQ LV matrimonial, between family members in the context of a disputed will, or concerning care and management of elderly family members: all of which I have dealt with in recent years. T

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 Dr Joshua Adedokun Translations and Interpreting for the Legal Profession since 1997. Specialists in Personal Injury and Clinical Negligence.

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

www.abc-translations.co.uk

www.expertpainreports.co.uk

Mr Antony M. Visocchi

Dr Lars Davidsson (LSM) MRCPsych MEWI

Independent Dental Expert Witness • Emergency care • Diagnosis and treatment planning • Issues of consent • All routine treatment

Consultant Psychiatrist and Accredited Mediator Reports within most areas of general adult psychiatry. Specialist in PTSD, anxiety disorders & mood disorders.

www.dentalexpertwitness.co.uk

www.angloeuropeanclinic.co.uk

Mr Chris Makin

Mr Marcus Ornstein

• Chartered Accountant • Accredited Civil Mediator • Accredited Expert Determiner

Hon Senior Lecturer and retired Consultant Surgeon with expertise in general surgery, breast disease, hernia and abdominal trauma. T: 07713 860000 E: markornstein@gmail.com

www.chrismakin.co.uk

www.marcusornstein.co.uk

David Berry PhD FRC Path MFSSoc MRSC

Mr. Michael Hodge

Independent Toxicology Consultant Specialist in toxicology with particular emphasis on drugs (both prescribed and illicit) and alcohol.

Maxillofacial and Oral Surgeon. • Personal Injury • Criminal Cases • Clinical Negligence

www.toxicologyservices.co.uk

www.consultantoralandmaxillofacialsurgeon.co.uk

Dr David Usher BSc DPhil FCIEHF

Dr Nigel Kellow MB BS FRCA MBA

Consultant Ergonomist: Identifying ergonomic issues behind work-related injuries. Assessing the equipment provided and the risk management system in place.

Consultant in Anaesthesia & Pain Medicine • Spinal cord and nerve injuries • Complications relating to anaesthesia • Fibromyalgia • CRPS • Back & neck pain

www.interactionofbath.com

www.kellow.com

Emma Ferriman Ltd

Premex Group Ltd

Consultant Obstetrician and Fetal Medicine Specialist • Prenatal diagnosis • Obstetric ultrasound • First trimester screening • Multiple pregnancy and high risk obstetrics

A leading provider of independent medical reports Choose from a panel of experts providing national coverage in every specialism

www.emmaferriman.co.uk

www.premex.com

Expert in Mind

Robert Hensher FRCS FDSRCS

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

Consultant Oral and Maxillo-Facial Surgeon Subspeciality interests: • Dental Implantology • Salivary Gland Surgery • Temporomandibular Joint Replacement

www.expertinmind.co.uk

roberthensher@gmail.com

FHDI - Kathryn Thorndycraft

Sector Forensics Ltd

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

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

www.forensichandwriting.co.uk

www.sectorforensics.co.uk

Mr Jeremy P Crew MA MD BChir FRCS

Dr Thomas C M Carnwath

Consultant Urological Surgeon Medical reports on all legal aspects of urology. Reports in some cases based on hospital notes only.

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

www.oxfordurology.co.uk

www.tomcarnwath.co.uk www.yourexpertwitness.co.uk

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ITI takes Lord Burnett to task over interpreting technology [THE Institute of Translation and

Interpreting (ITI) has challenged assertions by the Lord Chief Justice – made in his Sir Henry Brooke Annual Lecture – that technology developments will mean court interpreters are no longer required ‘within a few years’. In an open letter to Lord Burnett, the institute cited the most recent scientific evidence showing that machine interpreting is nowhere near ready to be a substitute for human interpreters. Unless significant time and resource were put into testing, developing and trialling systems for use in legal cases, there would be miscarriages of justice, increased cost to the taxpayer and disadvantage to those without English proficiency in their dealings with the legal system. The institute also highlighted the current unsatisfactory working conditions for interpreters.

“The systems for hiring, briefing and working with court interpreters are overdue for improvement,” the letter asserted. “As you will know, the current contract has been controversial among the existing cadre of court interpreters, who feel that their views and experience have not been taken into account.” ITI chair Sarah Griffin-Mason (pictured) said: “At the institute we regularly hear about instances, in this country and overseas, in which legal cases have been delayed, complicated or compromised because of poorquality language services. There is no situation in which inaccuracy or imprecision is less acceptable – and this includes interviews and statement taking, as well as court proceedings themselves. And in light of current limitations of interpreting technology, achieving a quality service with human interpreters has to be the number one priority.”

The ITI chair has extended an invitation to the Lord Chief Justice to come and meet ITI legal interpreter members to hear their views on how to increase efficiency in the hiring and management of interpreters in the justice system. q

Institute members sound a positive note [THE MAJORITY OF respondents to the Institute of Translating and Interpreting’s first-ever pulse survey were positive about their work and prospects in the current business environment. Nearly two thirds (63%) felt either ‘positive’ or ‘very positive’ about their work and prospects, compared with 13% feeling ‘negative’ or ‘very negative’. The ITI launched its pulse survey initiative to keep abreast of market conditions and its members’ main issues and concerns. The short surveys will be conducted two or three times a year to establish trends and the evolving priorities of members. For freelancers, the most challenging aspects of their role in the current climate were finding new clients, clients having a poor understanding of the job and what was needed to produce a highquality result, and keeping up to date with translation technology and how it could help their work. The business aspects of being a successful freelancer and working alone with limited opportunities to bounce ideas off others also figured among concerns. For those working in-house, the most challenging aspects were keeping up to date with translation technology, political/cultural uncertainties such as Brexit, planning a career path/career progression and keeping language and specialism knowledge up to date.

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Over 700 ITI members responded to the survey and the institute’s chief executive Paul Wilson commented: “It’s fantastic that so many members have taken part; this gets the initiative off to a great start, and it sets a solid foundation and benchmark for our future research. “The findings will inform the institute’s activities, and we look forward to seeing the bigger trends picture unfold over the course of future surveys.” q

thebigword takes up Heathrow interpreting role [LANGUAGE SERVICES PROVIDER thebigword has

expanded its work supporting Border Force at Britain’s busiest airport, Heathrow. The law enforcement organisation is responsible for immigration and customs controls at the west London aviation hub and processes more than 25 million passengers every year. As of February thebigword is providing telephone interpreting services to officials when dealing with passengers with limited English, to ensure that important information can be communicated as quickly as possible. The company’s interpreters are fully vetted and security cleared. Larry Gould, founder and chief executive of thebigword, said: “Border Force does an extremely important job in securing our borders, promoting national prosperity and preventing terrorists and criminals from entering the UK. We are proud to be supporting Border Force’s efforts at Heathrow with our expert telephone interpreting services, to ensure that all passengers are dealt with quickly and fairly.” Using thebigword’s telephone interpreting service, covering over 250 different languages and dialects, Border Force officials can be connected to an interpreter in less than 60 seconds, improving efficiencies and front-line processing times. q

Being different can bring advantages 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 • Expert Witness in Community Paediatrics and Clinical Public Health

[MANY PRACTITIONERS IN the legal

profession worldwide believe that it is a disadvantage to be different in culture, religion and ethnicity – a belief often borne out by experience. As an expert witness in that area I have noted that it can also sometimes be an advantage to be different, as long as those differences are innocent and do not provoke tension. In this article I outline my own example of how I have benefited from being different and sometimes not being aware of English customs. Of course, I learn and modify my behaviour from such experiences: learning has a beginning but no end. Everybody has lucky years in life and mine were 1986 and 1987. I met and chatted with Her Majesty The Queen twice and saw her again on two other occasions. The first time was in February 1986, at the opening of the headquarters of the Royal Society for Promotion of Health in London. I was there in my capacity as one of 20 members of the society’s council – the first British Asian ever to be elected as such. I was introduced by the chair of the council as: “Dr Bashir Qureshi, a GP and school doctor in Hounslow.” I spoke to Her Majesty straight away and told her that, since 1964 when I arrived in London, I had always watched her Christmas TV broadcasts. She always speaks about the Commonwealth in these broadcasts and so I told her how pleased I was to see her in person. The Queen was delighted and greeted me with a broad smile. The photographer took lots of photos, whereas he only took a couple when Her Majesty spoke to the other council members. To me it was all new and unfamiliar, so I was smiling more than usual. I was delighted. Her Majesty said to me: “You live in Hounslow, have you found it very noisy?” I replied that it was very noisy but had two advantages. The first was that when guests arrived I could show them Concorde from my garden. The second was that they didn’t stay long! The Queen laughed and the photographer took yet more photos. I now treasure those photos, which he later gave to me.

The cultural difference demonstrated on that occasion was that I was not aware that I should not have spoken first and should have let Her Majesty ask me a question – as she did with the others who were all English. As I was the only Asian there and did not know the British custom, I gained the indirect advantage of maximum attention from Her Majesty – as well as the many photos which I now cherish. In May of the same year, at the Royal College of GPs reception at the History of Science Museum in London, we had another unexpected chat. What that entailed will have to wait for another time. In June 1986 I was in the group welcoming The Queen, accompanied by the Duke of Edinburgh, when she came to open the headquarters of the Royal Society of Medicine, also in London. The fourth occasion was in July 1987, when I attended a Buckingham Palace Garden Party. Again, I saw Her Majesty greeting those in attendance. Now, as a Life Member of the College of St George at Windsor Castle, I am invited to attend the annual procession of the Knights of the Garter which takes place on the second Monday in June. During this ceremony the Royal Family, along with the Knights of the Garter and the armed forces chiefs, walk from the Queen’s residence to St George’s Chapel for prayers. In 2016 cars were used instead of the party having to walk, and in 2017 the procession was cancelled altogether – probably for security reasons. This year I am booked to attend on 18 June and very much hope the procession resumes. After the service in St George’s Chapel, The Queen creates new Knights of the Garter. I enjoy watching the procession, which includes former Prime Minister John Major at the front. In the past I have seen Rt Hon Margaret Thatcher and Rt Hon Edward Heath participating. Later on, I attend the annual tea party. I often reflect that, but for my cultural ‘difference’ and ignorance of royal protocol, I would not have the treasured memories I have today. q

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MEDICAL NOTES [THE ENDURING FUNDING CRISIS in the NHS has been sharing centre stage with two other issues of major

concern to the medical world in recent months. Both have made headlines over a protracted period – and both have seen Health Secretary Jeremy Hunt in the thick of it. June saw the publication of the Williams Review of gross negligence manslaughter in healthcare cases, prompting Mr Hunt to state that doctors would no longer be prosecuted for mistakes made during their treatment of patients. The review was ordered in February in the wake of the international furore over the treatment of Dr Hadiza Bawa-Garba. The publication of the Williams Review was itself preceded by the setting up of reviews by the GMC of the twin issues of manslaughter charges and the use of ‘reflective notes’ against doctors either in tribunals or in court. The Williams Review stopped short of recommending that such notes be legally privileged. • The other issue that attracted the attention of Mr Hunt was the controversy over the prescribing of opioid drugs. A research project into such prescribing earlier this decade found both a socioeconomic and a north/south divide. Poor people in the North are more likely to be prescribed opioids for pain, it appears. • A related problem concerns inadvertent overdoses of paracetamol, especially when taken for toothache. That is a phenomenon that came to the attention of researchers in Nottingham, who also reported on the cost to the NHS of subsequent hospital admissions. The problem is exacerbated by the easy availability of paracetamol in supermarkets and a seeming lack of awareness of how easy it is to overdose. The solution, say the researchers, is better access to emergency dental care. • Another concern regarding inappropriate use of a drug has also been addressed after being raised some months ago. In December last year we reported on a review of the prescribing of sodium valproate for pregnant women. Now, regulator MHRA has ruled that the drug, which is known to cause birth abnormalities and developmental disorders, should only be given to women of childbearing age if they are on a pregnancy prevention programme. • The main story in medical circles, however, remains the funding crisis in the NHS. A further facet of the crisis was revealed by the All Party Parliamentary Group on Eye Care and Visual Impairment, which called for wide-ranging measures to improve provision and end what the Royal College of Ophthalmologists called the ‘continuing crisis in eye care’. • Pressure on resources, together with changing targets, were also blamed for an increase in the length of time taken to reach hospital after a heart attack. Figures presented to the British Cardiovascular Society’s conference make disturbing reading. A study in Portsmouth found that the ‘call-to-door time’ for such cases had increased by nearly a half since 2011. • Medical failures can simply be the result of a simple mistake, as in the case of the laudable surgeon who owned up immediately to his patient and reported himself to the GMC. However, when claiming for medical negligence it is vital to access the correct expert advice. There are so many different specialisms and each has its own complex area of expertise. It is a skill in its own right making the correct choice. • In cases involving children or mental capacity, getting the right opinion is especially important: the outcome of the hearing can determine people’s futures. Useful guidance for lawyers comes in two articles from experts – one on appointing a properly-qualified child psychologist and the second on the Mental Capacity Act and neuropsychological assessments. q

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Williams Review: Hunt accepts recommendations

[HEALTH SECRETARY JEREMY HUNT has accepted the

findings of Professor Sir Norman Williams’s review of the use of manslaughter gross negligence charges against doctors. The review was commissioned by Mr Hunt in February, prompted by the conviction of Dr Hadiza Bawa-Garba following the death in 2011 of a six-year-old boy in Leicester. The conviction caused an international furore, with the president of the Australian Medical Association in New South Wales commenting: “How on earth was the doctor convicted of manslaughter? We don’t understand it.” The report by Sir Norman was published on 11 June and the following day drew comment from Mr Hunt. “When something goes tragically wrong in healthcare, the best apology to grieving families is to guarantee that no-one will experience that same heartache again.” He added: “I was deeply concerned about the unintended chilling effect on clinicians’ ability to learn from mistakes following recent court rulings…the actions from this authoritative review will help us promise them that the NHS will support them to learn, rather than seek to blame.” The review makes recommendations to support a more just and learning culture in the healthcare system. It covers: • The process for investigating gross negligence manslaughter • Reflective practice of healthcare professionals • The regulation of healthcare professionals

GMC to lose right of appeal

Among the recommendations in the report are that the GMC should be stripped of its powers to challenge fitness-to-practise decisions. Mr Hunt told Parliament that the GMC’s right to appeal decisions had resulted in a lack of confidence in their regulator, as well as having an unanticipated impact on the willingness of doctors, especially trainees, to reflect fully on their practice. The GMC said it was ‘disappointed’ about the plan to remove its right of appeal, claiming the move would significantly reduce its ability to protect patients. Sixteen out of eighteen of appeals cases heard in court had been upheld, it said in a statement. The move was welcomed by the British Medical Association, however. BMA council chair Chaand Nagpaul said the association had long opposed the GMC’s right to appeal fitness-to-practise decisions. “We know that doctors going through this process find it stressful enough, in many cases leading to anxiety and depression, without the added worry that any decisions made by the Medical Practitioners Tribunal Service can be overridden by the GMC taking the case to a higher court,” he said. “If we as doctors and the wider health service are to learn from these mistakes, and to prevent such tragedies occurring, the NHS needs a dramatic shift away from the current culture of blame.”

One of the reasons given for not including a recommendation that reflective notes be legally exempt was that: “To provide an exemption for reflective practice material would rightly cause concern that healthcare professionals are above the law.” Other recommendations in the review include: • A revision of guidance to investigators and prosecutorial bodies to ensure a ‘clearer understanding’ that the bar for gross negligence manslaughter is for rare cases when performance is ‘truly exceptionally bad’ • That ‘systematic issues’ and ‘human factors’ should be taken into account alongside the actions of an individual when errors lead to death • Extra support for families bereaved by the death of a loved one • The GMC will no longer be able to require doctors to provide reflective material when investigating fitness-to-practise cases Prior to the publication of the Williams report, there were already plans to produce new guidance for doctors on reflective practice. It is to be produced jointly by the General Medical Council, the Academy of Medical Royal Colleges, the Conference of Postgraduate Medical Deans and the Medical Schools Council. Workshops to discuss reflective practice have already been held in London, Edinburgh and Cardiff. The GMC had also already set in motion its own working group looking into gross negligence manslaughter – culpable homicide in Scotland – in the medical profession and has invited written submissions as the latest stage of its review. The team has been selected and is being led by Dame Clare Marx, chair of the Faculty of Medical Leadership and Management. q Image – NHS Confederation

No protection for reflections

Both bodies expressed disappointment that the review stopped short of recommending legal protection for doctors’ reflective notes. The fear among many doctors that their reflective notes could be used against them in fitness-to-practise hearings and even in court was one of the issues raised by the Bawa-Garba case. GMC chair Professor Sir Terence Stephenson commented: “We wholeheartedly support the Secretary of State’s desire to create a learning culture. The best way to achieve that is to legally protect doctors’ reflective notes. We are concerned that, in accepting these recommendations, the Government is missing an opportunity to protect all doctors by not going ahead with a recommendation to enact this legal protection.” www.yourexpertwitness.co.uk

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Jail for fraudulent negligence claimant [A MAN FROM Birmingham has been jailed for contempt of court

is necessary to mark these serious contempts and to deter others. I am satisfied that appropriate punishment can only be achieved by after ‘grossly exaggerating’ his injuries in a claim for compensation an immediate custodial sentence.” against the NHS. It is the first time that an NHS Trust has engaged in Hempsons Solicitors were instructed in the case by NHS Resolution proceedings of this kind. on behalf of Calderdale and Huddersfield NHS Foundation Trust. In the landmark case, Sandip Atwal was sentenced to three months in Commenting on the sentence, Hempsons said: “The NHS is not jail for his deliberate attempt to defraud the NHS and deceive the court. an easy target and should not be looked upon as such. However, it He has also been ordered to re-pay £75,000 in legal costs. Sentence is of equal importance to recognise that those who pursue genuine was passed on 1 June following his conviction on 27 April. claims will be properly compensated.” q In 2008 Mr Atwal was injured in an attack and went to Huddersfield Royal Infirmary. He was treated for fractures to the index finger of his right hand and the ring finger of his left hand, and a laceration to his lower lip. Mr Atwal then sought damages in excess of £800,000 for clinical negligence, alleging that he was grossly incapacitated, had been THE Private Healthcare Information Network (PHIN) is left a social recluse and was asking consultants working in private healthcare to begin unable to return to work. approving data on the number of procedures they undertake The court found that Mr Atwal and typical lengths of stay, for publication on PHIN’s public deliberately set out to defraud website. The information will be the first step in publishing the NHS and deceive the court a range of performance measures to help patients make by exaggerating the extent of informed choices, as required by the Competition and Markets his continuing symptoms and Authority’s Private Healthcare Market Investigation Order 2014. disabilities. A period of covert Consultants admitting private patients are now able to review surveillance and review of social and approve their performance measures through PHIN’s media entries revealed that Mr online portal in advance of publication. PHIN is aiming for Atwal exhibited no disability and 1,000 of consultants to approve their data for an initial launch, continued to work. which is anticipated at the end of July. Throughout the contempt PHIN’s CEO Matt James (pictured) said: “We want to launch proceedings Mr Atwal failed to this service for patients with a strong representation of the engage and never sought to leading consultants in the country. The response from the professions so far has been superb, with the explain any of the discrepancies main specialty organisations giving us great input and support to prepare the data and communicate with between the surveillance their members.” evidence, his pleaded case and Eventually PHIN will need to publish performance data for all of the estimated 14,000 consultants claimed loss. admitting patients privately, with measures ranging from patient satisfaction and reported outcomes to Having taken account of adverse event rates. Fee information for an even wider group of consultants, including those who see only a range of aggravating and outpatients, will also be published in 2019. mitigating factors – not least the The President of the Royal College of Surgeons, Professor Derek Alderson, welcomed the move. fact that this was a claim against He said: “This is a major opportunity for the private healthcare sector to rally behind transparency and the National Health Service, demonstrate genuine commitment to improving patient safety and reducing risk. We encourage all of our which if successful would have members to get behind this opportunity to review and approve performance data and take a lead on safety resulted in a loss of precious and transparency.” public funds – Mr Justice The announcement came just weeks after Health Secretary Jeremy Hunt challenged hospital leaders Spencer remarked: “My firm to respond positively to concerns raised by the CQC over standards of quality and governance at some and clear conclusion is that a independent hospitals. q sentence of immediate custody

Umbrella body prepares to publish private practice figures [

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The expert’s expertise must fit the bill – no matter who is paying it [THE MUSHROOMING OF medical

negligence claims in recent years has resulted in a concomitant increase in the number of medical experts needed to assess claims and agree compensation. The role of the expert is clearly defined in in the Civil Procedure Rules. In Part 35.3 the rules state: (1) It is the duty of experts to help the court on matters within their expertise. (2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid. The British Medical Association sums up the duties of a medical expert thus: “Expert evidence should be – and should be seen to be – independent, objective and unbiased. In particular, an expert witness must not be biased towards the party responsible for paying his or her fee. The evidence should be consistent regardless of who is paying for it.” There are myriad pitfalls the expert must avoid. They include the very real possibility of a conflict of interest and the risk of straying outside an area of expertise.

Writing in BMJ Careers in 2015, Melanie Rowles, a director of the Medical Protection Society, admonished: “Before you accept instructions, you should also ensure that you do not have any conflicts of interest, such as knowing or having worked with any of the doctors concerned. Doctors cannot act as independent expert witnesses if they are familiar with the people involved.” It is also crucial for an expert to ensure they only give an opinion on issues within their area of expertise. The GMC has this to say on the matter: “You must only give expert testimony and opinions about issues that are within your professional competence. If a particular question or issue falls outside your area of expertise, you should either refuse to answer or answer to the best of your ability but make it clear that you consider the matter to be outside your competence.” The focal point of an expert witness’s contribution to a case is the expert witness report. In the case of a medico-legal expert that will usually be based on a combination of

medical reports and possibly an examination of the claimant. According to the BMA: “A medico-legal expert’s report is a vital element in litigation. It must be clear, succinct, independent and well presented. “Reports are seen by many professionals during litigation and often new instructions are received from opposition lawyers. Many medicolegal experts create their own report writing style or adopt other people’s generalised formats, having rarely received constructive feedback from lawyers on what is required from their medico-legal reports.” While a number of experts operate in the field of general practice – and there is evidence that GPs are being instructed increasingly in areas such as whiplash instead of orthopaedic consultants – most specialise in a particular field of medicine. More specialist areas of practice will normally require reports from consultants in their field. Your Expert Witness routinely carries articles from experts in their specialties intended to explain the issues to lawyers. q

Spine charity offers expert training [SPINAL CORD INJURY can happen to anybody. It can be caused by a road accident, workplace fall or even tripping over the pavement, as well as the high-profile cases of servicemen injured in action and civilians injured in terrorist attacks. The Spinal Injuries Association is a national charity dedicated to helping everyone touched by spinal cord injury to rebuild their lives.

All your experts under one roof!

[ONE ORGANISATION THAT can help find experts across a

wide range of disciplines – not just the medical profession – is the Expert Witness Institute (EWI). The institute acts as a voice for the expert witness community, supporting experts from all professional disciplines and lawyers who use the services of experts. It functions to encourage, train and educate experts and to improve and maintain their standards and status. The EWI actively works with a wide range of professional bodies to achieve that aim. The EWI’s Annual Conference will take place this year on 27 September at Church House Conference Centre, Dean’s Yard in London. Under the banner Experts under the Judicial Microscope: cases, commentary and criticisms, the EWI will welcome expert witnesses, solicitors, barristers and eminent judges with a programme filled with informative legal updates, vibrant debate and case law analysis. At the conference, representatives from Your Expert Witness will be meeting up with old friends and making new ones at their exhibition stand. q

Unusually among medical charities, the Spinal Injuries Association offers training days and seminars to professionals outside the medical arena, who may deal with claims for personal injury. They include a series of expert witness seminars which, following on from a successful launch last year, will be continued this year and next. All the speakers are experts in spinal cord injury and the aim is to increase the knowledge of existing experts and give health professionals who may be considering becoming experts (in any field) an awareness of what is expected of them. The seminars will also be of interest to members of the legal profession, as an opportunity to hear direct from the experts themselves The charity also organises solicitors’ training days – aimed at solicitors and barristers who work within the field of personal and catastrophic injury. They take place in London and Manchester with this year’s London training day taking place on 15 October at Glazier’s Hall. For more information on both events visit www.spinal.co.uk/learn. q

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Some cases require a team of experts [A RECENT CASE handled by Girlings Solicitors in Kent

demonstrates the need to instruct the correct expert in a particular discipline – or indeed several disciplines. Girlings secured compensation of £750,000 for a client with lifechanging injuries caused by a hospital’s negligence in what appears to be a catalogue of errors. Following a fall their client attended her GP. An MRI was requested but did not take place until two months later. Meanwhile, she returned to her GP with left hip and leg pain. An X-ray was undertaken but nothing unusual was reported. Some weeks after the fall she called 999, complaining of numbness in her vagina and leg, and was taken to Whipps Cross Hospital, where she was streamed into the minor injuries department. Later, she complained of constipation in addition to backache and hip and leg pain. She also complained of urinary incontinence and vomiting. She was taken by ambulance to hospital, diagnosed with a urinary tract infection and discharged. As her symptoms were not improving she again attended hospital some two weeks later, having been directly referred to the neurosurgeons by her GP. She was now complaining of pain in her back, spreading to the lower limbs with numbness, associated with pains in her vagina, poor bowel control and urinary incontinence. An MRI scan was organised, the results of which were considered normal. She was discharged pending an outpatient neurology appointment.

Physios are the experts in soft tissue injury

Two days later her condition had still not improved; she was still incontinent of urine and vomiting. She also had difficulty walking. She was taken to hospital by ambulance and underwent a repeat MRI scan. She was kept in hospital for the following 11 days. It was only when she underwent a lumbar puncture ten days following her hospital admission that tuberculous arachnoiditis of the spine was diagnosed, by which time treatment would not lead to a full recovery. Girlings concluded: “Our client has been left with permanent complications in the form of a right foot drop and bowel and bladder dysfunction. She also suffered from post-traumatic stress disorder and depression. She has had to secure new accommodation suited to her needs. She was on maternity leave at the time of the negligence, but was planning on returning to her teaching position at a senior school. Given the circumstances, she was unable to do so.” The range of experts assembled by Girlings constituted a multidisciplinary team in itself. It comprised experts in emergency medicine, orthopaedic surgery, neurology and neurosurgery – who confirmed that, but for the negligent delay in diagnosis, the claimant would not have suffered the permanent complications. Further expert evidence was obtained from a psychiatrist, a urogynaecologist, a colorectal surgeon and a care expert in order to value the claim. q

[IN MANY CASES involving soft tissue injury – including

the much-maligned ‘whiplash’ – the most appropriate place to turn for expert opinion could well be a physiotherapist. Indeed, there is a distinct specialism within chartered physiotherapists offering specific medico legal services. The Medico Legal Association of Chartered Physiotherapists (MLACP) is a professional network for chartered physiotherapists and others who have a special interest in medico legal work. According to the MLACP: “An understanding of medico legal matters is required in all areas of physiotherapy practice and at all stages of career progression. Some physiotherapists will choose to develop particular expertise in medico legal work and may undertake to write medico legal reports which can be used for a range of purposes.” The association outlines three main roles in which physiotherapists may be required to act as experts: • Witness of Fact – they may be asked to provide information for one of their patients who is involved in a civil litigation process, usually a personal injury or clinical negligence claim. A physiotherapist who is a witness of fact is required to comply with an appropriate request to provide the patient’s physiotherapy records and/or a report. • Expert Witness – physiotherapists who have developed expertise in a specific area of practice, as well as the legal litigation process, may choose to undertake expert witness work. Those physiotherapists are wholly independent of the patient and have never been involved in their treatment. • Coroners Witness / Interested Person – they may be asked to assist in a coroner’s inquest in order to determine the cause and circumstances of a person’s death. A physiotherapist may be asked to give factual or opinion evidence depending on the coroner’s investigation. q www.yourexpertwitness.co.uk

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Tinnitus treatment varies across the country, survey finds [AN AUDIOLOGIST FROM the UK’s leading tinnitus clinic is urging sufferers to seek support after a study revealed considerable regional variation in tinnitus service provision across the UK, particularly in the availability of psychological treatments. The study – based on a survey conducted by the British Tinnitus Association – revealed that only one in 40 are able to access psychological services for tinnitus, despite an evidence base that suggests psychological treatments are one of the most effective management strategies. According to the study, one fifth of patients reported that at initial consultation their GP did nothing, and two thirds of people referred for diagnostic services in secondary care were then discharged without any therapeutic intervention. A further one in eight people were referred from primary to secondary care, discharged and then re-referred to secondary care, creating, in the words of the report, ‘expensive and unsatisfactory revolving-door healthcare’. Chief audiologist at The Tinnitus Clinic, Mark Williams, said: “In comparison with most other countries, the UK has well developed nationwide tinnitus services. However, these findings worryingly show that people are going through disappointing experiences when they seek help. “We often see patients who have been told by their GP that nothing

Workshop offers occupational noise solutions

[THE Health and Safety Laboratory (HSL) – a division of HSE – is running a one-day workshop on Occupational Noise Control on 4 July, in Manchester. The workshop will demonstrate how most noise problems can be dealt with quickly and cheaply using simple engineering solutions – removing the reliance on ineffective hearing protection. The increasing burden of hearing damage on individuals and businesses through insurance claims shows that the current approach to noise management is failing. HSE research has shown that hearing protection is very often ineffective and HSL have developed the workshop to showcase more practical engineering solutions. Issues could include: • HSE’s attitude to noise control and the • regulatory requirements • Using conventional acoustic materials • and control measures • How to evaluate and cost the noise • control options in their workplaces • Applying low-cost engineering noise • control techniques on their sites • Acquiring detailed solutions to the 10 • most common noise problems • Details of free online noise control • resources. q

can be done; and that can be very upsetting and distressing – particularly for people who find the condition is already impacting on their mental health. “Particularly concerning are the findings around the lack of psychological treatments. Some of the psychological disorders associated with tinnitus – which is often described as a ‘ringing in the ears’ – are anxiety, depression and insomnia. The condition can leave people feeling isolated, so being passed from person to person within the healthcare system, and with little psychological support, can lead to problems building up.” The Tinnitus Clinic gave the example of a patient in Leeds, who had been told by his GP that there was no treatment available for him. This frustration led him to finding The Tinnitus Clinic and, following treatment, he said his tinnitus had effectively disappeared and it was a relief to know there were other options out there. Around six million people in the UK are affected by tinnitus, many of them to a disabling degree, and this number is increasing as the population ages and younger people are exposed to loud noise through excessive earphone use and recreational noise. Mark added: “At The Tinnitus Clinic we work hard to relieve pressure on the NHS in any way we can. I would say to anyone suffering currently: don’t give up. There are treatments that can help, so seek support and get in touch.” q

Noise campaign makes final of national H&S awards [

A CAMPAIGN against noise at work was one of the shortlisted finalists in this year’s Safety and Health Excellence Awards. The campaign, Noise Changes Lives, was devised and run by monitoring specialists Cirrus Research. It was nominated in the Marketing Campaign of the Year category. It was born out of the company’s long history and rich understanding of the noise-at-work sector, where noise induced hearing loss (NIHL) is a growing and recognised threat to workers’ health in key sectors. According to Cirrus: “Over the years the issue has been put back in the spotlight as personal injury lawyers recognised a rich seam of possible claimants who had historically suffered NIHL in industries that were slow to catch on to health and safety risks associated with noise. Noise was officially classified as a statutory nuisance in 1960, but it was some years after that the threat to personal health was recognised and addressed in statutes.” The campaign used emotive examples to illustrate the loss associated with NIHL, such as: “Imagine never been able to hear…your child’s voice…the start of Christmas…waves on a beach…the sound of bacon frying on a Sunday morning.” Said marketing manager James Tingay: “We wanted to get rid of the blasé attitude to NIHL and for that we needed to build our campaign around a hard-hitting image and message that no one would expect to see in a very traditional H&S media sector.” Visually, the threat to hearing was illustrated by coupling a gun with a megaphone. Said James: “We also knew it could be controversial using the gun imagery at such a sensitive time of national security, but to us it was the only one that would really make people sit up and take notice – and it worked.” q www.yourexpertwitness.co.uk

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What can go wrong after a hip fracture? MR NIKHIL SHAH, consultant trauma and orthopaedic surgeon at the renowned Wrightington Hospital in Wigan, discusses some of the many complications that can lead to litigation

[HIP FRACTURES are common injuries in older patients and can

lead to devastating patient outcomes: the reported one-year mortality is 10% to 37%. Many patients suffer from reduced mobility, loss of function and independence. Although the increased mortality and morbidity is often attributed to pre-existing medical problems in this group of frail, vulnerable patients, it may also arise from post-operative complications and re-operations. There are many reasons for litigation after hip fractures. Some of the more common allegations include a delay in diagnosis, failure to perform or interpret X-rays, delayed surgical treatment, poor surgical performance, inappropriate choice of operation or prosthesis and technical errors. Others are postoperative death or morbidity attributed to suboptimal care, errors in the administration of anticoagulants or antibiotics, surgical site infection or delayed diagnosis of infection, and poor nursing care leading to pressure sores.

Missed fracture

Missed fractures can lead to a delay in diagnosis and treatment and have been linked to increased morbidity and mortality in some cases. There needs to be a high index of suspicion in older patients who have fallen and are unable to bear weight on the leg. A good history, clinical examination and adequate radiographs are necessary. Undisplaced or impacted fractures may show relatively normal examination findings, and the patient may be able to bear weight. Occult fractures may not be seen on the plain X-rays. There are guidelines regarding the use of CT scans or MRI scans to make an early diagnosis in difficult scenarios.

Surgical site infection

Surgical sepsis can be a serious complication and is also linked to mortality. Some of the risk factors include age-related conditions. The experience of the surgeon, the operative time and method of fixation can also be factors. It may lead to additional surgery, including a permanent removal or excision of the hip joint.

Non-union

Non-union can be a problem with intra-capsular fractures, especially in children or younger patients with high-energy trauma. The reported incidence ranges from zero to 45%. The main causes are poor quality of reduction, failure of fixation and poor blood supply to the femoral head. Accurate fracture reduction and stable internal fixation are necessary to avoid the problem. Non-unions can be seen despite good surgery. The treatment may include re-fixation or osteotomy, or even conversion to a total hip replacement.

Avascular necrosis

This condition is characterised by death of the bone in the femoral head due to disruption of blood supply. It is more common after displaced intra-capsular fractures, showing an incidence of zero to 40% or even higher. It may take as long as 24 to 36 months for the condition to become apparent and may lead to arthritis or even necessitate a total hip replacement.

Delayed treatment

The optimal timing of hip fracture surgery continues to be debated. Reasons for delay may include missed fractures, lack of staff, equipment or operating theatre availability, the need for further investigations or time for medical optimisation. There has to be a balance between reasonable delays for medical optimisation and the risk of prolonged recumbency. Most specialists would avoid unnecessary delay and try to perform surgery within 24 to 48 hours of admission. Early orthogeriatric input is vital. Patients who face surgical delay are often those who have medical conditions needing optimisation, which may independently influence post-operative mortality.

Medical complications

Elderly patients often present with significant medical co-morbidities. There is a risk of cardiac, respiratory or renal complications, chest or urinary infections and pressure ulcers, despite optimal therapy. Postoperative delirium has also been linked to mortality. Deep vein thrombosis can lead to pulmonary embolism and even death. It may occur despite appropriate anticoagulant therapy and mechanical prophylaxis, due to patient-related co-morbidities and post-fracture immobility. The potential benefit of preventing thrombosis needs to be carefully balanced against the risk of bleeding complications.

Other complications include dislocation after hemiarthroplasties or total hip replacements, bleeding complications or wound haematoma and intra-operative fractures during surgery. Extracapsular fractures fixed with hip screws or nails may be associated with fracture healing complications. Many patients continue to report fracture-related pain and/or limitations at, or beyond, sixÂ months post-fracture. The ninth annual report of the National Hip Fracture Database shows that more patients are receiving early surgery and surviving a hip fracture. The emphasis is on managing those patients under a comprehensive hip fracture programme that represents best practice and consists of a multidisciplinary, patient-centred approach to care, leading to expeditious surgery and improved outcomes. Many claims are potentially avoidable with adequate medical, surgical and nursing care, and adherence to best practice standards. q www.yourexpertwitness.co.uk

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Hip revision surgery is on the increase, researchers find [RESEARCH HAS SHOWN that the rate of metal-on-metal (MoM) hip implant patients undergoing

revision surgery has increased over time. The observed differences are in part due to increased patient surveillance and a lowering of the threshold for further surgery. The findings, reported by researchers at the Universities of Oxford and Bristol, were reported in the Bone and Joint Journal earlier this year. Approximately 1.5 million patients worldwide have received metal-on-metal hip replacements for painful arthritis. Abnormal reactions to metal can develop, which may cause surrounding tissue damage. Many patients with those reactions require further operations, known as revision surgery. Worldwide authorities recommend that patients with an MoM hip implant undergo regular hospital check-ups, blood tests, and/or imaging to monitor their condition. Using data from the National Joint Registry for England, Wales, Northern Ireland and the Isle of Man, the researchers examined the five-year revision rates for MoM hips implanted from 2007 onwards and compared them to MoM hips implanted before 2007. The results show a significant increase in revision surgery for all primary MoM hip replacement designs implanted from 2007 onwards compared to those performed before that date. One of the authors, Mr Gulraj Matharu of the University of Oxford, commented: “The increased number of metal-on-metal hip implant patients undergoing further surgery in recent years is likely explained by changes made in how this group of patients are managed. Our study findings are most likely attributable to the increase in regular patient follow-up combined with many surgeons now acting earlier to perform revision surgery.” q

Partial knee replacements could be more common – and more successful [MANY MORE PATIENTS could be given a partial knee replacement

instead of a total knee replacement, resulting in improvements in their quality of life and lower costs for the healthcare system. That was the conclusion of a research team from the Nuffield Department of Orthopaedics, Rheumatology and Musculoskeletal Sciences at Oxford University. The team found that partial replacements, also known as unicompartmental replacements, are better for patients who have only part of their knee affected by arthritis. The procedure is less invasive, allows for a faster recovery, carries less post-operative risks and provides better function. It is also a cheaper intervention for the NHS, in both the short and long term. The main reason for knee replacement surgery is osteoarthritis and about half of the patients needing knee replacement could be suitable for a partial replacement, a procedure where only the affected part of the knee joint is replaced. However, according to data from the National Joint Registry, of the 98,147 knee replacements undertaken in 2016 only 9% were partial. Paradoxically, partial replacements done by surgeons who only used them for a small proportion of knee replacements provide worse outcomes than total replacements; whereas partial replacements done by surgeons using them for a high proportion of knee replacements provide better outcomes and are cheaper for the NHS than total replacements. “This is an important finding,” co-lead researcher Professor David Murray explained. “If surgeons aim to use partial knees in a quarter or more of their knee replacements, that will substantially improve the results of knee replacement and will save money. In addition, more

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partial knee replacements will be done and more patients will benefit from this procedure.” One of the research paper’s authors, Ed Burn, added: “For patients and the NHS to see the benefits of partial replacements we need the buy-in of surgeons, who would need to feel comfortable performing a greater proportion of their knee replacements as partials.” q

Orthotics: what is it and how can it be applied in medico-legal work? [ORTHOTICS IS THE field of medicine concerned with the design and manufacture of devices that are worn on the body to modify or correct functional and structural characteristics of the neuromuscular and skeletal system. The devices, known as orthoses, can range from a simple shoe raise to a device that is worn on the whole leg, arm or spine. Consultant orthotist Stephen Seccombe explained: “When worn, orthoses aid rehabilitation by controlling, guiding, limiting or immobilising a joint, limb or body segment – in conjunction with the treatment plans of other professionals such as physiotherapists and orthopaedic or neurological consultants. As a result they will either restrict movement or enable movement to address the clinical symptoms. “For medico legal-work, an orthotic expert witness tends to assist in personal injury or medical negligence cases rather than criminal cases. “The role of the orthotist is rarely to assist with the determination of causation. Instead, they will be instructed to recommend the orthotic device or devices needed in the short, medium and long term to aid rehabilitation and maintain a level of activity for the individual. The orthotic expert will determine the suitability of specific devices, the durability and cost.” q

Compensation provides specialist orthosis [THOMPSON’S SOLICITORS

reported in November last year on a case where a compensation claim included a substantial orthotic element. The claim was made by a former TA soldier, who was accidentally shot during a training exercise. The accident left the young soldier with life-changing injuries, some of which he may never recover from. These include chronic pain, internal injuries, permanent scarring and the inability to walk without the permanent assistance of an advanced orthotic device, such as the one pictured. Thompson’s said: “The compensation will also enable the former soldier to have state-of-theart knee ankle and foot orthoses for the rest of his life, allowing him to walk freely despite his injuries; such a device is not available through the NHS and without this compensation his future quality of life would have been significantly impaired.” The former soldier commented: “This settlement brings relief after what has been a difficult few years, leaving behind a career I loved. I am so thankful for the guidance and support from Thompsons Solicitors; their legal expertise has allowed me to move on and rebuild my life.” q www.yourexpertwitness.co.uk

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The role of the child psychologist in family law by DR PAULA ROTHERMEL, Chartered Psychologist

>EXPERT CHILD PSYCHOLOGISTS can provide an invaluable

service to the Family Court and to the child subjects they report on. /DZ\HUV KRZHYHU DOVR KDYH D VLJQLÂ¿FDQW UROH WR SOD\ LQ VHOHFWLQJ WKH most appropriate psychologist, ensuring expertise and managing the application of that psychologistÂ´s expertise. The most important point is to note that the titles â&#x20AC;&#x2DC;psychologistâ&#x20AC;&#x2122; and â&#x20AC;&#x2DC;consultant psychologistâ&#x20AC;&#x2122; are not protected by law and anyone can use WKRVH WLWOHV DPRQJ RWKHU YDULDWLRQV 6LPLODUO\ WKH WLWOH RI 'U KDV QR OHJDO protection. The title Dr X, Consultant Psychologist can set a lawyerâ&#x20AC;&#x2122;s heart pumping, believing they have found the credible expert they need, when just the opposite may well be the case. 2QFH XSRQ D WLPH WKH H[SHUW ZDV DOZD\V TXHVWLRQHG DERXW WKHLU TXDOLÂ¿FDWLRQV DQG H[SHUWLVH XSRQ HQWHULQJ WKH ZLWQHVV ER[ LW EHLQJ WKH ODVW RXWSRVW RI FUHGHQWLDO YHULÂ¿FDWLRQ EXW WKLV LPSRUWDQW IDFW FKHFNLQJ exercise seems increasingly to be overlooked. In 2009 the Health and Care Professions Council (HCPC) was created to protect the public. The HCPC has nine protected titles that psychologists FDQ XVH LI WKH\ KDYH SURYHQ TXDOLÂ¿FDWLRQV DQG KDYH PHW +&3& VWDQGDUGV All HCPC registered psychologists have gone through a registration process and the protected titles are: practitioner psychologist; registered psychologist; clinical psychologist; counselling psychologist; educational psychologist; forensic psychologist; health psychologist; occupational psychologist; and sport and exercise psychologist. A child psychologist (not a protected title) can be any one of the above, depending on the precise nature of the instructions, and will usually use the title â&#x20AC;&#x2DC;educational psychologistâ&#x20AC;&#x2122; or â&#x20AC;&#x2DC;clinical psychologistâ&#x20AC;&#x2122;. As a rule of thumb, if the case involves learning then an educational psychologist will be appropriate. If there is a clinical aspect, such as medical negligence, then a clinical (child) psychologist may be best. In every case the lawyer should provide some background and ask the psychologist if this potential instruction is likely to be within their UHPLW ,W PD\ EH WKDW RQFH WKH TXHVWLRQV DUH LVVXHG WKH H[SHUW ORRNV DW them and reports back that they are not the appropriate expert. HCPC-registered practitioners will all have a registration number that they can supply to the lawyer and can be checked at www.hcpc-uk.org. The next item on the lawyerâ&#x20AC;&#x2122;s â&#x20AC;&#x2DC;expert checklistâ&#x20AC;&#x2122; is professional liability LQVXUDQFH 3/, 2QO\ +&3& UHJLVWHUHG KHDOWK SURIHVVLRQDOV FDQ REWDLQ 3/, DV D SV\FKRORJLVW Â± WKH +&3& QXPEHU EHLQJ UHTXLUHG RQ DOO 3/, DSSOLFDWLRQV 7KH 3/, FKHFN LV SHUKDSV DPRQJ WKH VLPSOHVW RI FKHFNLQJ PHFKDQLVPV EHFDXVH LW UHTXLUHV DQQXDO UHQHZDO The third â&#x20AC;&#x2DC;standardâ&#x20AC;&#x2122; check is to ask whether the psychologist has DQ (QKDQFHG 'LVFORVXUH DQG %DUULQJ 6HUYLFH '%6 FHUWLÂ¿FDWH 7KH HQKDQFHG FHUWLÂ¿FDWH LV HVSHFLDOO\ GHVLJQHG IRU WKRVH ZRUNLQJ ZLWK children and criminal record checks are made on individuals involved with a regulated activity such as contact with children or vulnerable adults. A psychologist cannot apply as an individual and will need WR KDYH JRQH WKURXJK DQ RUJDQLVDWLRQ Â± OLNHO\ WR EH D FKDULW\ ORFDO DXWKRULW\ RU WKH %ULWLVK 3V\FKRORJLFDO 6RFLHW\ %36 %36 PHPEHUVKLS LV QR ORQJHU WKH JROG VWDQGDUG WKDW LW RQFH ZDV its role having been largely superseded by the HCPC. Nevertheless, the title Chartered Psychologist has legal protection and a lawyer should check that the psychologist using this title is registered at www.bps.org.uk/lists/cpsychol. To summarise: check that your potential expert child psychologist is registered with the HCPC, carries professional liability insurance, KDV DQ (QKDQFHG '%6 FHUWLÂ¿FDWH DQG LI XVLQJ WKH WLWOH &KDUWHUHG 3V\FKRORJLVW LV UHJLVWHUHG ZLWK WKH %36 3URIHVVRU -DQH / ,UHODQGÂ¶V UHSRUW Evaluating Expert Witness Psychology Reports was part funded by the Family Justice Council and VSDUNHG FRQVLGHUDEOH GHEDWH Â± LQ SDUWLFXODU WKH VXJJHVWLRQ WKDW H[SHUW witnesses should be able to demonstrate continued practice in the area they are assessing, or should hold a contract with, for example, a local authority. Many expert witnesses are in private practice and specialise

in assessment rather than the provision of therapeutic services, and such standards as those suggested are, by many, considered unworkable and inappropriate. There are, however, some good recommendations: not least that the psychologist should be able to demonstrate evidence of continuing SURIHVVLRQDO GHYHORSPHQW &3' $JDLQ DV ZLWK UHJLVWUDWLRQ WKH ODZ\HU VKRXOG H[SHFW WR VHH WKLV VHW RXW LQ WKH H[SHUWÂ¶V &9 )LQDOO\ ZH VKRXOG QRW IRUJHW WKH /HWWHU RI ,QVWUXFWLRQ /2, DQG VSHFLÂ¿FDOO\ WKH TXHVWLRQV )RU H[SHUWV WKH UHSHWLWLRQ RI VHQVHOHVV DQG XQQHFHVVDU\ TXHVWLRQV LV D KRW WRSLF 2IWHQ WKH EHVW SHUVRQ WR KHOS SKUDVH WKH TXHVWLRQV LV WKH H[SHUW LQ SHUVRQ DQG D SURÂ¿WDEOH XVH RI public funds is a half-hour conversation between the expert and the ODZ\HU WR UHYLHZ WKH EDFNJURXQG RI WKH FDVH DQG SLQSRLQW WKH TXHVWLRQV that will best serve the court process. $ JRRG /2, PLJKW KDYH Â¿YH IRFXVHG TXHVWLRQV WKDW DGGUHVV WKH core issues, the answers to which will give all parties the information WKH\ QHHG 7KH Â¿QDO TXHVWLRQ VKRXOG LQYLWH WKH SV\FKRORJLVW WR VXSSO\ any further relevant information, including a provisional opinion if considered appropriate and necessary. Finally, there should be a reminder for the expert that a range of opinion is to be considered and the evidence base made clear. Importantly, the end report should not be used by the lawyers as a ÂµPDNH GRÂ¶ IRU TXHVWLRQV WKDW KDYH QRW EHHQ DVNHG ,Q DOO FDVHV ZKHUH QHZ TXHVWLRQV DULVH LW LV DGYLVDEOH WR LVVXH DQ DGGLWLRQDO LQVWUXFWLRQ The lawyer following this simple advice will be appreciated by courts and experts alike, and hopefully provide value for money while best serving the children involved in the family court process. T

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Complex capacity and causation issues in injury claims Identifying capacity issues in an injury claim requires good understanding of the test under the Mental Capacity Act and an appreciation of the subtle signs that follow a brain injury. It may necessitate a neuropsychological assessment to identify the impact on everyday life, future disability, employment prospects, the need for support and decision making. Neuropsychologist LINDA MONACI and barrister GILES EYRE consider one example.

[THE ISSUE OF the mental capacity of a claimant during or at the

conclusion of injury litigation may arise from a condition pre-dating and independent of the accident or event that is the subject of the claim, or the condition may be the result of the accident or event. Alternatively, as in the case study below, it could be a combination of both. Section 2 of the Mental Capacity Act 2005 (MCA) provides that: “A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.” The burden of proving lack of capacity is on the person asserting such lack. Section 1 of the Act provides that: “(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. (4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.” These latter two provisions can be challenging to apply to the facts of a case.

The case of Ms D

Ms D suffered a preventable subarachnoid haemorrhage (SAH) at age 45, which left her with a degree of cognitive, physical and emotional symptoms. At the time of the index event she lived with her partner and their 17-year old daughter and worked part-time in a warehouse. She brought a claim for negligence against the healthcare provider. On discharge from hospital she was reported to be able to wash, dress and safely cook a meal with minimal physical restrictions. Subsequently, she had some community neurorehabilitation and on numerous occasions was referred for psychological support due to mood disturbances and prescribed antidepressants.

Neuropsychological assessment

At 18 months after the index event Ms D reported that, since the event she had been unable to live independently and needed considerable help – for instance to organise and carry out shopping, cooking or dressing. Her partner attended the appointment with her and he also indicated that she could not live independently and that he now supported her, including in all financial matters. He reported that he had to give up his job as a building contractor to become her carer and had recently applied for Carer’s Allowance. Ms D, now medically retired, received a small work pension and state benefits. All spare income was spent on funding the partner’s on-line gambling, which appeared to take up much of his time. The assessment could not objectively establish the degree of cognitive decline because Ms D failed effort tests, so she was likely to have underperformed on tests of cognitive functioning. Ms D also over-reported physical, cognitive and emotional symptoms on a questionnaire that included validity scales. Her underperformance and overreporting were considered to be consistent with malingering, factitious disorder or somatisation. In the first two the person has a conscious intent, but it is subconscious in the latter. Ms D’s medical history suggested a past tendency to somatise – that is, experience physical symptoms in response to psychological stress. There was consistency between her reports, her partner’s reports and the multitude of contacts with her GP, rehabilitation team and the services providing psychological support. As a teenager she had been involved in a relationship that featured physical, emotional and sexual abuse. She also had a longstanding history of recurrent depression.

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During the relationship prior to her current one, which also featured physical and emotional abuse, she was charged with several counts of theft and handling stolen goods. She reported committing them to please her partner at that time, in the hope he would stay with her and they would get married. She had not reported any abuse by her current partner, but her history prior to the SAH indicated she was a vulnerable individual and she had a tendency to become emotionally dependent on the men with whom she formed romantic attachments. As a result she had made decisions that were not in her best interest – for example becoming involved in criminal acts and remaining in abusive relationships – to maintain the relationship. It was significant, therefore, that she was now content that much of their meagre income went on the partner’s gambling. To try to establish her cognitive problems, the neuropsychologist considered data on the prevalence of cognitive problems following an SAH, together with cognitive test data, behavioural observations, interview, third party reports and information contained in the medical and occupational records. While the cognitive testing results could not be relied on, because of the failed effort tests, all other information consistently indicated that, since the index event, she had difficulty in maintaining goals. That was consistent with executive problems, impacting also on her social and interpersonal functioning. When the neuropsychologist asked questions aimed at understanding her ability to manage finances, Ms D reported as being completely independent and having no problems. However, when her partner was interviewed separately, he reported that Ms D needed support with money management which he now took complete responsibility for, saying she would ‘regularly lose her purse’. Ms D reported seeing herself as physically and cognitively disabled. She did not enjoy going out or meeting others, as social interactions created heightened anxiety for her. As a result, she and her partner were socially isolated and she had become even more emotionally vulnerable and dependant on him. Although the results of the cognitive testing were not conclusive, there was abundant behavioural evidence that, while even before the index event she was disorganised and struggled with completing a training course, since the brain injury she was less socially aware – for instance often making socially inappropriate comments – and she was considerably more anxious, vulnerable and dependant than she had been before the SAH.

The capacity test

Section 3 of the MCA provides that: “A person is unable to make a decision for himself if he is unable (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or any other means).” It goes on to state: “The information relevant to a decision includes information about the reasonably foreseeable consequences of (a) deciding one way or another or (b) failing to make the decision.”

Financial capacity issues

Upon direct questioning, although Ms D’s responses suggested that she had capacity, the key issue was her ability to weigh up information and her

ability to do so in the face of possible influence by those close to her – as indicated by both her pre-morbid history and more recent events. There was a mismatch, typically observed in individuals with executive problems (the likely consequence of the SAH), between what she said she would do and what she actually did. In addition, there was her pre-existing emotional vulnerability and tendency to undertake actions that were not in her best interests in order to preserve a romantic relationship. • Ms D reported managing finances without help but needing help with more basic activities such as self-care, which was inconsistent with the cognitive abilities required by those tasks. • The records showed that, before the index event, on several occasions she agreed to do something but then failed to go through with her stated intent. • Given her history of somatisation, her underperformance on cognitive tests and over-reported symptoms were highly likely to be the result of somatisation rather than malingering or factitious disorder. However, intent cannot be excluded due to the presence of secondary gains, both in terms of financial rewards and also care. Her partner had applied for Carer’s Allowance and there was a clinical negligence claim. • Multiple sources of information indicated Ms D appeared to experience significant executive problems since the index event.

Drawing a conclusion

The neuropsychologist, contrary to the opinions of the psychiatrist and neurologist instructed, raised the issue of vulnerability. Due to pre-existing emotional vulnerability, together with her perceived disability, social isolation and problems in executive functioning since the SAH, Ms D was even more vulnerable to being exploited and manipulated by others and at high risk that she would allow the substantial damages she was to receive to be gambled away by her partner in order to appease and placate him. In those circumstances she was not just likely to make a bad financial decision if she felt it was necessary to maintain a romantic relationship, but because of those factors she was unable properly to use or weigh that information as part of the process of making the decision.

While the MCA presents a two-stage test that needs to be applied to establish whether an individual lacks capacity, ‘borderline’ capacity cases raise difficult, and at times almost philosophical issues, as to what is meant by the proper weighing of information, and how judges approach such cases. Each case is unique and among experts a range of opinions can often be found. It is ultimately a matter for the judge to apply the law in each individual case. However, it would be helpful for both members of the legal profession and experts to be able to access court decisions in such difficult cases, including in the County Court and Court of Protection. That would enable them to enrich their understanding of the application of the MCA in practice. q This article was first published in New Law Journal, February 2018.

• GILES EYRE is an Associate Member of Chambers at 9 Gough Square, London and has recently retired from practice as a barrister. He continues to give training and present workshops for experts on providing effective expert reports and on medico-legal issues. He is co-author of Writing Medico-Legal Reports in Civil Claims – An Essential Guide (2nd edition), published by Professional Solutions Publishing, and regularly writes articles on the subject. He blogs on issues relevant to court experts in civil claims with particular, but not exclusive, relevance to medical experts at www.medico-legalMinder.net. • DR LINDA MONACI was a consultant clinical neuropsychologist for the last six years of her NHS employment and now works only privately – providing clinical services such as neurorehabilitation and undertaking expert witness instructions. Her specialist areas of expertise are neuropsychological assessments and treatment of acquired brain injury, degenerative neurological disorders and neuropsychiatric conditions in adults of all ages. Dr Monaci can carry out assessments in Italian and also has experience of working through interpreters. She receives regular instructions on behalf of both claimants and defendants and has completed Bond Solon Expert Witness Accreditation training.

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Conference connects brain and mind [THE SECOND STAGING of the Royal College of

Psychiatrists’ Neuroscience Spring Conference took place at Downing College in the University of Cambridge on 13 April. Connecting brain and mind: Neuroscience and the future of psychiatry drew a capacity audience for a very successful day at the interface between science and medicine. The Neuroscience Spring Conference is well on the way to becoming an annual event and is the only national conference devoted to the contemporary role of neuroscience in psychiatry. As such it attracted the UK’s top clinical psychiatrists and leading researchers in neuroscience, with an engaging programme of world-class presenters from the UK and the US. Psychiatric trainees, medical students and representatives of patient groups also participated – all brought together to share in the latest ideas from clinically relevant, cutting-edge research on the human brain and behaviour. Much time was given over to creating opportunities for networking and the development of new contacts, with the aim of fostering collaborations that might speed-up the translation of discoveries in research into benefits for patients. q

Psychiatrist, assess thyself!

[THE Royal College of Psychiatrists’ Centre for Quality Improvement

(CCQI) offers members a multi-source assessment tool for expert psychiatric witnesses (MAEP), designed to help psychiatric expert witnesses collect feedback on their work. The tool is based on research conducted by Professor Keith Rix, author of the authoritative book on psychiatric expert reporting. The system incorporates eight core competencies, which link in with the GMC’s principal values. They are: professionalism; ethics; skills; reliability of opinion; presentation of opinion and report; understanding of law, procedure and rules of evidence; oral testimony; and business manners and affairs. According to the CCQI: “It is an opportunity to gain a perspective on how important aspects of your work performance as an expert witness are perceived by the professionals involved in the cases in which you report.” The system allows participants to gain feedback from instructing solicitors only, or from a range of people involved in a case – solicitors, barristers and other experts. The results can be used to assess performance and identify weaknesses. The CCQI continues: “Scores can help you to identify areas of good practice, as well as areas that you might further develop.” The RCPsych’s MAEP is the only feedback tool developed specifically for use by psychiatric expert witnesses and can be used across different legal jurisdictions. It can also be used to assess performance in all manner of courts and tribunals, including civil, criminal and family courts, employment tribunals and coroner’s courts. Expert witnesses can use the information for their own appraisal purposes and it is not made publicly available. q

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Opioid problem has a socioeconomic dimension – and a geographical one [THE WIDELY REPORTED issue of the

over-prescription of opioid drugs for pain has been given a further twist by a study published earlier this year. The study, led by University College London and UCL Hospital, looked at the period from August 2010 to February 2014. It found the problem was most acute in economically deprived areas and that there is a north/south divide, with nine out of ten of the highest prescribing areas located in the North of England. “We feel that the most important finding is the extremely strong association between the amount of opioid prescribed and lower socio-economic status. The variation across the country is undeniable and, given the morbidity and mortality associated with this class of drugs, unacceptable,” said lead author Dr Luke Mordecai. He said that opioids were rightly given to people to cope with cancer pain and shortlived acute pain. However, the widespread prescribing of opioids for people with longterm pain was not adequately supported by evidence, because opioids have not been shown to be effective in most chronic pain beyond modest, short-term effects.

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Opioids are also potentially dangerous, particularly with long-term use and larger regular doses, leading to problems such as addiction and abuse, hyperalgesia, gastrointestinal disturbance, immunological dysfunction, risk of fracture in older people and increased mortality. In England, Scotland and Wales, deaths attributed to opioids have also increased: from fewer than 500 in 2001 to 900 in 2011. Even weak opioids such as codeine and dihydrocodeine carry risks, with deaths related to codeine up from 73 in 2012 to 130 in 2013 and dihydrocodeine accounting for 103 and 102 deaths in the same years. Despite the risks, and evidence that

they do not work, the study found that many GPs prescribed them because they thought it was unethical to refuse their patients painkillers. The study looked at the total amount in grammes of each of eight commonly prescribed opioid drugs and found a rise in six of them. The most prescribed opioid drug in England over the 43 months of the study was tramadol. It is not as weak as overthe-counter codeine, but does not have the stigma of the powerful morphine. The authors said that as few as one in five people with problematic pain have access to specialist pain services and only 40% of those services offer best practice in the form of multidisciplinary team assessment and treatment. They argue that good practice needs now to be extended from specialist to primary care. “This study highlights the lack of access to specialist pain services which practise pain self-management techniques and opioid reduction programmes,” said Dr Mordecai, adding that those programmes demonstrate far better outcomes than opioid prescriptions. q

The whiplash challenge By IVAN RAMOS-GALVEZ LMS FRCA FFPMRCA Consultant in Pain Medicine at Medicolegal Associates Ltd, Royal Berkshire Hospital and Spire Dunedin Hospital

[A WHIPLASH INJURY can be inherently challenging to prove and

manage for both the claimant and the defendant in a claim because there is often a lack of physical evidence of structural anomaly. Whiplash injury is caused by a sudden movement of the neck in any direction that sprains and stretches the soft tissues of the neck. The most common event associated with this type of injury is a road traffic accident. However it can also be seen following sports injuries, falls or even forceful blows in the head or back. Essentially, any sudden change in speed that allows the head to move in a different direction to the body. High-speed cameras and dummies in crash tests have shown that in a high-speed crash from behind, whilst stationary, the base and the top of the cervical spine flex in opposite directions creating an abnormal ‘S’ that can cause damage to the supporting structures of the neck, including the facet joints. Because of its inherent lack of structural abnormality, the natural history of an injury of this type is one of spontaneous improvement within a few weeks. However, in some cases, the symptoms may persist for months or even years, when it can cause significant disability. The primary symptoms of whiplash relate to the soft tissues of the neck. The head is a significantly heavy structure that is only supported by the small cervical spine at the back of the neck with most of the weight of the head hanging at the front. The spine is a column of bone upon bone that is only held together by a system of strong muscles that wrap around it. Instinctively, the natural reaction of those muscles in a case of potential injury to the neck is to protect the spine by tightening up. Therefore, neck pain with loss of movement of the neck and stiffness are commonplace complaints. If the neck suffers from intermittent spasms within the muscles that hold the spine, headaches can happen, as the nerves that supply the scalp cross those muscles and will get compressed within the muscle fibres. These headaches are normally related to the back of the head and move around the ear towards the front of the head. Because of the neck spasms and stiffness with pain, finding a position that is comfortable to stand, walk or even sleep can be not only painful but also challenging. The most frequently reported injury is the C5/6 segment. The natural radiation pattern of this segment is towards the shoulder blades and upper arms. As sleep is difficult, an abnormal pattern of sleep that starts to affect the natural day-night cycle can set in. With time this will impair performance and affect memory, attention and ability to react. Over time, the inability to rest as well as the frustration of the constant pain and lack of ability to do ‘normal things’ will affect mood. Eventually the full sequence of loss of quality of life at all levels, but primarily social and economical, will affect some sufferers of whiplash.

The aim of treatment is to try and stop the injury spiralling at the earliest opportunity. In the early stages physiotherapy can help to stop the deterioration and restore normal function. This however may not be effective for all cases. As the symptoms evolve and their effect on daily living increases, more invasive treatments such as facet joint injections can be appropriate. These can help by temporarily switching off the nerve supply to the muscles of the neck. Depending on the result, a more permanent treatment may be carried out by means of denervation, a treatment that burns the nerves. All patients will benefit from both a psychological and physical approach to treating the symptoms. This is aimed at increasing the physical thresholds of activity as well as reducing the impact that the lack of activity has on daily living. From the litigation perspective, the inherent difficulty is being able to show physical evidence of structural anomaly. Imaging of the cervical spine is often normal, or at the most it shows a straight cervical spine, in keeping with tight muscles around the spine. This is compounded by the common finding of osteoarthritis affecting the spine that will be present in a large number of whiplash sufferers. The symptoms of both osteoarthritis and whiplash overlap in many areas. The role of the expert is to determine what preceded, and if the presenting symptoms are related to any pre-existing conditions. In these cases, historic records, past history, GP notes and past referral letters are key. But it is paramount to have a consistent and reliable historian. Pain can be subjective and very between patients. What may be debilitating for one patient may be manageable for another, and symptoms such as stiffness can be exaggerated. Accurate record keeping, repeated assessments and video surveillance will assist the expert in establishing not only the effect of the injury, but also the reliability of the claimant. Whilst a few claimants may attempt to mislead professionals by exaggerating the extent of the pain and disability caused by a whiplash injury, whiplash can be extremely painful and disabling and should be taken seriously. q • Dr Ivan Ramos-Galvez is a consultant in pain medicine with a sub-speciality in spinal surgery at the Royal Berkshire Hospital and Spire Dunedin Hospital in Reading. He is an expert for both clinical negligence and personal injury claims and can be instructed through Medicolegal Associates Ltd on 020 7118 0650 or email: info@medicolegal-associates.com www.yourexpertwitness.co.uk

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Discitis: more than just a back pain [ PAIN IS RECOGNISED as the most

common reason that people attend their GP. Figures indicate that chronic pain can affect up to one in four people. It can be a major source of suffering and can be the result of illness, such as cancer, arthritis and back problems. A rare cause of back pain, however, and one with potentially serious consequences, is discitis – infection and inflammation of the discs in the spine. According to the Medical University South Carolina: “One of the causes of discitis is the result of an intervention at the site of the

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infection by a surgical, diagnostic or therapeutic procedure. For example, surgery on the back or a needle placed in the back for a diagnostic or treatment can introduce pathogens.” Most people who suffer from discitis have a good outcome when the condition is identified and treated properly. However, discitis can cause long-term effects, including pain and mobility issues, if not treated properly and in a timely fashion. In the worst cases discitis can cause paralysis and a complete spinal cord injury. Raquel Siganporia is head of the spinal injuries team at law firm Bolt Burdon Kemp. She explained: “From our experience of investigating these cases, there can be negligence by medical staff in failing to investigate and appreciate the symptoms, as well as with administering the correct treatment of the condition itself. “Sadly, we have also seen situations where people begin to develop the early stages of paralysis and medical staff do not act on these early warning signs, causing the person to become paralysed permanently. “Discitis can present as nothing more than back pain initially, and therefore may not be diagnosed as soon as it should be. Symptoms of discitis can often be mistaken for another infection, such as flu or a stomach bug, and therefore appropriate treatment may not be given.” She stressed that time was an important factor in diagnosis. “While some delay in the diagnosis of discitis can be expected, long delays should be avoided and timely investigations and treatment following a suspected diagnosis can result in a very different outcome,” Raquel concluded. q

Heart attack patients taking longer to reach hospital [ HEART ATTACK PATIENTS in some

parts of the country are now waiting an average of almost 80 minutes between calling an ambulance and reaching hospital for life-saving treatment. That was the result of research carried out in Portsmouth and presented at the British Cardiovascular Society Conference in Manchester in June. Researchers at Portsmouth Hospitals NHS Trust found that some patients are waiting an average of 25 minutes longer compared to 2011. The growing pressures on the ambulance services, changing of targets and use of first responders were seen as the most likely causes. For patients who suffer an acute ST-elevated myocardial infarction (STEMI) – the most serious type of heart attack – getting treated quickly is essential to minimise the damage to the heart muscle. Around four in five STEMI patients reach hospital thanks to the ambulance service, which means understanding any delays is critical to improving survival and outcomes. The researchers looked back at 1,347 cases between 2011 and 2017 and measured the mean time taken from the moment the call was received through to the point the patient arrived at hospital – known as call-to-door time. In 2011, the average call-to-door time was 53 minutes, but by 2017 it had risen to 78 minutes: an increase of 47%. Although the study didn’t look at the fate of the patients, the authors say that the extra time is likely to worsen outcomes as the heart muscle spends longer starved of oxygen. However, there has been an overall improvement nationally in outcomes for patients suffering both STEMI and out-of-hospital cardiac arrest since 2011.

The author of the study, Dr Fazlullah Wardak, was quick to defend the paramedics who attend emergencies, instead citing the growing pressure on services and changes in targets for the lengthening delays. “This is no reflection on the hard-working paramedics in Portsmouth,” she said. “The ambulance service is doing the best job it can under the circumstances, but pressure is now starting to show. Although first-responders can play a hugely important role, quickly getting patients into the hospital so we can unblock the artery has to be our primary goal.” q

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Surgeon tells patient: “I’ve done the operation wrong” [A RECONSTRUCTIVE PLASTIC

surgeon with over 30 years experience operated on the wrong part of a patient’s arm – confessing to his mistake soon after the procedure ended. The patient, Philip Ivory from Bridlington in East Yorkshire, had been experiencing numbness in his fingers and underwent elective ulnar nerve decompression surgery at Castle Hill Hospital near Hull in July last year, to restore feeling. Despite marking Mr Ivory’s arm before he began the procedure, the surgeon made his incision on the outside area of the elbow, as opposed to the inner part where it should have been. Mr Ivory has now been awarded damages after bringing a medical negligence claim against Hull and East Yorkshire Hospitals NHS Trust, through Hudgell Solicitors in Hull. The trust admitted fault for the error, described as a ‘never event’ which should not happen. Mr Ivory told how the surgeon visited him at his bedside shortly after the operation. He said: “I said to him ‘everything alright?’ and he never said anything. He asked the nurse to take off the bandage. “He then said ‘I’ve done the operation wrong’. I was shocked and I thought he was joking with me so I said ‘we all make

mistakes’. Then I thought, ‘Oh no, he’s not joking’. “He apologised and said he had reported himself to the medical council. He said it was his first mistake in 32 years.”

The procedure was eventually carried out at Castle Hill Hospital in February 2018, by another surgeon and Mr Ivory is waiting to see if he regains the feeling in his fingers, which can take up to a year. q

Plastic surgeons issue skin cancer advice [ IN MAY the British Association of Plastic, Reconstructive and Aesthetic Surgeons

(BAPRAS) issued advice on avoiding the risk of skin cancer, coinciding with skin cancer awareness month. Much of the advice relates to protecting the skin from the sun, such as applying sun cream with an SPF of 30 – or 50 on exposed scars – covering up and wearing a hat. Other advice, however, applies to the use of sun beds. According to the NHS, many sunbeds give out greater doses of UV rays than the midday tropical sun and people who are exposed to UV rays before the age of 25 are at greater risk of developing skin cancer later in life. While the most common type of skin cancer is a result of direct sun exposure and/ or sunbed damage to skin cells, it can also be genetic. According to BAPRAS, there are over 22 recognised types of skin cancer. A common warning sign is new moles on the skin or existing ones changing shape, colour or texture. That may not necessarily be cancer, but can indicate an early sign of the condition. A dermatologist or plastic surgeon can provide a comprehensive assessment of any skin lumps and bumps to determine whether they are cancerous or benign. The guidance states: “Early preventative action and an understanding of the dangers of the sun and UV rays are the most effective methods of avoiding a skin cancer diagnosis. Follow advice and keep an eye on your skin for any changes.” q

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Deep vein thrombosis: flights and plasters By PHILIP COLERIDGE SMITH DM MA BCh FRCS Consultant Vascular Surgeon, Medical Director of the British Vein Institute and Emeritus Reader in Surgery at UCL Medical School

[DEEP VEIN THROMBOSIS (DVT) affects one person in every 1,000

of the population each year, but what makes the occurrence of a DVT more likely? The greatest emphasis amongst medical professionals in recent years has been on medical or surgical treatment in hospital. Admission to hospital alone increases the risk of a DVT, but surgical treatment increases the risk considerably – with hip, knee and pelvic operations carrying the highest risk. The National Institute for Health and Care Excellence (NICE) has provided detailed information on the measures which should be taken to prevent DVT arising following treatment in hospital. NICE published Clinical Guideline 92 in 2010 and this was updated in 2015. The advice covers outpatient treatment as well as operations performed in the day surgery department. Failure to adhere to this advice which leads to the development of a DVT could be regarded as substandard practice. In recent years, significant publicity has been given to episodes of deep vein thrombosis following long distance travel, usually by air. Perhaps the most famous person to develop a DVT was Richard Nixon who suffered a DVT in 1972 while negotiating the Anti-Ballistic Missile Treaty which involved a considerable amount of flying. The former US vice-president, Dick Cheney, also developed a DVT in 2007 while on a tour of the Far East. So, should we all be concerned about developing a DVT following a long haul flight? Large numbers of people travel on long haul flights which has enabled epidemiologists to estimate the risks involved. It led to the conclusion that long-distance travel increases the risk of DVT approximately two to fourfold. The absolute risk of a symptomatic DVT within four weeks of flights over four hours is one in 4,600 flights. The risk of severe pulmonary embolism occurring immediately after air travel increases with duration of travel, up to 4.8 per million in flights longer than 12 hours. In summary, the absolute risks of suffering a DVT are small after a long haul flight.

Preventing deep vein thrombosis

The means of preventing a DVT after a long haul flight is not completely resolved. Since this is a relatively uncommon event, taking anticoagulant drugs is inadvisable since these carry the risk of provoking haemorrhage. Only those people at high risk of DVT should consider this after taking medical advice. Incidentally, taking even a low dose of aspirin increases the risk of gastro-intestinal bleeding – undesirable at 30,000 feet over the Atlantic! NICE makes no recommendation on this subject. The American College of Chest Physicians advises the use of compression stockings for those at increased risk and counsels against the use of anticoagulants and aspirin. The airlines recommend regular exercises and drinking water, which is sensible advice. The cause of a DVT after long distance travel appears to be inactivity whilst in the sitting position for an extended period.

Plaster casts and minor orthopaedic procedures

Patients who suffer a fracture around the ankle or suffer a significant sprain may need to have their ankle immobilised in a plaster cast or a brace for a period of time, even when no surgery or anaesthesia has been required. Epidemiological studies indicate that the need to wear a plaster cast approximately doubles the risk of subsequent DVT. NICE CG92 advises that patients wearing a plaster cast should be considered for preventive treatment using an anticoagulant drug on a selective basis. The risk factors for DVT include older patients (age >60), obese patients (BMI >30) and those being treated for cancer or receiving medication with oestrogen containing drugs such as the oral contraceptive pill or HRT. Patients who are considered to be high risk should receive prophylaxis against deep vein thrombosis with anticoagulant drugs, after consideration of the potential risks of this treatment. The guideline also discusses a further group of orthopaedic patients – those undergoing ‘other orthopaedic operations’. These include arthroscopy of the knee and operations on the foot and ankle, which are considered to carry a modest risk of causing deep vein thrombosis. Again, NICE CG92 recommends the use of prophylaxis against DVT with anticoagulant drugs in high risk patients. In a number of cases on which I have advised, the NICE recommendations have been disregarded and a DVT has developed. This gives rise to the question of causation and whether treatment with anticoagulant drugs would have prevented the DVT? The detailed analysis of literature undertaken by NICE in 2010, when the project was undertaken, revealed only a limited amount of data which addressed this problem. There appeared to be reasonable evidence that the strategy of selective provision of anticoagulant drugs would prevent DVT. In 2017 the New England Journal of Medicine published a large study in which patients undergoing knee arthroscopy or immobilisation of the leg in a plaster cast were studied (van Adrichem R et al ). Half of the group received anticoagulant drugs to prevent DVT and half did not. More than 3,000 patients were included in this study. The outcome was assessed on the number of patients who developed DVT symptoms. The number of DVTs which developed was small, affecting approximately 0.5% in the arthroscopy group and about 1.5% in the plaster cast group. The effect of providing the anticoagulant drugs was small – about a 20% reduction in the incidence of DVT in both groups. In neither group was statistical significance reached. In medical terms, the treatment failed to achieve its aims. For claimants who failed to receive prophylactic drugs during either type of treatment and subsequently developed a DVT, this publication offers no support on causation; the treatment would not have prevented the DVT. It also leads to considerable discussion amongst specialists in the field of thrombosis and orthopaedics! q

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Valproate and pregnancy: regulator takes action [THE Medicines and Healthcare products Regulatory Agency has announced that valproate

medicines – used to treat epilepsy and bipolar disorder – must no longer be prescribed to women of child bearing age unless she is on a pregnancy prevention programme (PPP). The medication significantly increases the risk of birth defects and developmental disorders in children born to women who take it during pregnancy. Healthcare professionals who prescribe valproate must ensure the woman is enrolled in a PPP, which includes the completion of a signed risk acknowledgement form and seeing a specialist at least every year. The new regulatory measures are being supported across the NHS, with other authorities also making changes – such as new GP system computer alerts – to ensure changes in prescribing behaviour take place promptly. Women who are prescribed valproate are encouraged to contact their GP and arrange to have their treatment reviewed. Women should not stop taking valproate without medical advice. Mr Edward Morris, vice president for clinical quality at the Royal College of Obstetricians and Gynaecologists, said: “We welcome this action to reduce the risk of physical and developmental problems in children born to mothers who have taken valproate during pregnancy. Our clinical guideline on the management of epilepsy in pregnancy recommends that exposure to sodium valproate and other anti-epileptic drugs should be minimised by changing the medication prior to conception, as recommended by an epilepsy specialist after a careful evaluation of the potential risks and benefits. “It’s important to note that stopping medication for long-term conditions completely or altering the dose can pose a serious risk to both mother and baby. Women are advised to seek advice from their GP and/or specialist team before conception or as soon as they are aware that they are pregnant. For women with epilepsy, the lowest effective dose of the most appropriate anti-epileptic drug should be prescribed and they should be looked after by a specialist team throughout pregnancy.” q

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Midwives respond to child mortality study [THE Royal College of Midwives (RCM) has reacted to a study

published in The Lancet in May, which compares child mortality in England and Sweden – two high-income countries with similar levels of economic development and universal healthcare. The study sought to understand the factors driving higher rates of child mortality in England. The study found that deaths in children under five years old occur one-and-a-half times more often in England than in Sweden. It compared more than 3.9 million English births and one million Swedish births. According to the study, the difference is largely due to children in England typically weighing less at birth, being born earlier and having more birth anomalies (such as congenital heart defects) than

Irish abortion vote prompts response from RCOG [

FOLLOWING THE OUTCOME of the abortion referendum in the Republic of Ireland, the Royal College of Obstetricians and Gynaecologists issued a statement regarding the situation in Northern Ireland. According to the RCOG, women in Northern Ireland now face one of the most restrictive abortion laws in the world. The college stated its belief that women in Northern Ireland should be able to access abortion care services within their own country. Dr Carolyn Bailie, a consultant obstetrician in Belfast and chair of the Northern Ireland Committee of the RCOG, said: “The current situation means that any woman seeking an abortion has to travel to the UK without formal medical referral, and at huge personal cost both emotionally and financially. While funding for abortion in England and Scotland is a welcome temporary step, this is not an acceptable long-term solution. “Members of the Northern Ireland Committee have increasing concerns regarding the purchase of abortion-inducing medications online and the potential complications that can arise when they are not taken under medical supervision. That poses difficulties for healthcare professionals caring for women under such circumstances and places women and professionals at risk of imprisonment.” q

in Sweden. The authors say that public health interventions to help improve the health of mothers before and during pregnancy, as well as reducing socioeconomic disadvantage overall, could be important to improve the health of babies at birth and increase their survival rate. Mervi Jokinen, practice and standards professional advisor at the RCM, commented: “This is further evidence about the often tragic impact of inequality in the UK and about the need to reduce these inequalities. It highlights the pressing need to invest in public health to prevent deaths that could perhaps be avoided. There are efforts being made, for example in Wales and Scotland, where their Governments are both taking a strong stance in seeking to address the issue of health inequalities. “The RCM has persistently highlighted this issue and stressed the importance of having good public health systems in place, and the key role that midwives have in promoting public health. We need to see much more robust policies for pregnant women and the early years to reduce the impact of deprivation. Ms Jokinen highlighted the different role played by midwives in the UK and Sweden, saying: “There may also be scope here for the UK to learn from Sweden, where midwives have a strong pre-conception role – which on the whole is not the case in the UK. “Schools in Sweden also have sessions from midwives for boys and girls promoting family planning and how to be in the best possible health for pregnancy and parenthood. They are seen vital for early prevention of illnesses later in life.” q

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APPG report highlights failings and points the way forward for eye care >THE PUBLICATION on 6 June of the report by the All-Party

3DUOLDPHQWDU\ *URXS RQ (\H +HDOWK DQG 9LVXDO ,PSDLUPHQW RQ H\H FDUH provision in England was met with approval by a cross section of health professionals and campaigners for the visually impaired. The report, See the light: Improving capacity in NHS eye care in England, makes 16 recommendations, from providing staff with more extensive training to setting national targets, and sets out a way forward WR WDFNOH WKH FULVLV LQ SURYLVLRQ RI H\H FDUH LQ WKH 1+6 ,Q D MRLQW VWDWHPHQW WKH JURXSÂ¶V FR FKDLUV /RUG /RZ RI 'DOVWRQ DQG -LP 6KDQQRQ 03 VDLG Â³7KH UHFRPPHQGDWLRQV LQ WKLV UHSRUW ZKHQ implemented, will help to meet the increasing demand for eye care services, deliver strategic and joined-up eye care, and reduce the QXPEHU RI SDWLHQWV ORVLQJ VLJKW EHFDXVH RI GHOD\V Â´ 7KH 5R\DO &ROOHJH RI 2SKWKDOPRORJLVWV 5&2SKWK ZDV DPRQJ those calling for the reportâ&#x20AC;&#x2122;s recommendations to be implemented at a national strategic level, fully integrated and appropriately funded. 5&2SKWK SUHVLGHQW 0U 0LNH %XUGRQ VDLG DW WKH ODXQFK Â³7KH RQO\ disappointing aspect of this report is that it has been necessary to produce it at all. Failure to stop the continuing crisis in eye care is no longer an option. This crisis is not new and has been discussed at a QDWLRQDO OHYHO PDQ\ WLPHV LQ WKH SDVW Â´ 7KH FROOHJHÂ¶V YLFH SUHVLGHQW 3URIHVVRU 6WHYH 9HUQRQ ZDV D PHPEHU RI WKH ([SHUW $GYLVRU\ *URXS IRU WKH LQTXLU\ $QRWKHU PHPEHU ZDV 0DFXODU 6RFLHW\ PHPEHU DQG FDPSDLJQHU 0DOFROP -RKQVRQ ZKR KDV EHHQ GLDJQRVHG ZLWK DJH UHODWHG PDFXODU GHJHQHUDWLRQ $0' +H FRPPHQWHG Â³, KRSH WKLV UHSRUW ZLOO EH DFWHG XSRQ SRVLWLYHO\ E\ government and politicians in order to stop people from losing their VLJKW DQG WKH FRQVHTXHQW HIIHFW WKDW WKLV KDV RQ WKHP SHUVRQDOO\ DQG RQ WKH HFRQRP\ Â´ The advisory group also included patients volunteering with WKH ,QWHUQDWLRQDO *ODXFRPD $VVRFLDWLRQ DQG WKH 51,% WRJHWKHU with representatives from the College of Optometrists, Optical &RQIHGHUDWLRQ %LUPLQJKDP )RFXV 9LVLRQ 8. DQG 1+6 $OOLDQFH )RUPHU &DELQHW PHPEHU /RUG 'DYLG %OXQNHWW LV D PHPEHU RI WKH $33* +H FRPPHQWHG Â³8UJHQW DFWLRQ LV QHHGHG WR HQVXUH H\H FDUH services meet the needs of patients now and in the future. World class WUHDWPHQWV DUH QRZ DYDLODEOH IRU FRQGLWLRQV OLNH ZHW $0' ,W LV YLWDO WKDW patients have access to them at the right time to save their sight. Â³:H KDYH EHHQ DEOH WR LGHQWLI\ D VHULHV RI UHFRPPHQGDWLRQV ZKLFK ZLOO KHOS LPSURYH FDSDFLW\ LQ H\H FDUH :H DUH FDOOLQJ RQ WKH 6HFUHWDU\ RI 6WDWH IRU +HDOWK DQG 6RFLDO &DUH WR LQFOXGH H\H KHDOWK LQ WKH 1+6 (QJODQG PDQGDWH Â´ Another recommendation that was particularly highlighted by ERWK WKH 51,% DQG WKH 5&2SKWK LV IRU 1+6 (QJODQG WR UHYLHZ DQG report publicly on how eye care capacity issues are addressed in sustainability and transformation plans and how these relate to current and predicted need. 0U %XUGRQ VDLG Â³7KLV UHSRUW LQFOXGHV SHUVRQDO WHVWLPRQ\ IURP SHRSOH directly affected by the lack of capacity within eye care services, and it is entirely right that they are central to why we are asking for recognition of the crisis. But it is also the patientsâ&#x20AC;&#x2122; clinician that is working under extreme pressures. I have personally experienced Â± RQ PDQ\ RFFDVLRQV Â± P\ DELOLW\ WR GHOLYHU KLJK TXDOLW\ FDUH EHLQJ compromised by a system that is overwhelmed and which causes potential or actual loss of vision; and I am not alone. This is devastating IRU SDWLHQWV DQG VRXO GHVWUR\LQJ IRU FOLQLFLDQV Â´ 7KH 5&2SKWK KDV FDOOHG IRU 03V SDWLHQWV DQG FDUHUV WR SXW SUHVVXUH RQ WKH 'HSDUWPHQW RI +HDOWK WR VWRS WKH FULVLV DQG IRU WKH 6HFUHWDU\ RI 6WDWH WR WDNH D SHUVRQDO LQWHUHVW LQ ZK\ RSKWKDOPLF KHDOWKFDUH professionals and the annual seven million outpatients should be listened to. T www.yourexpertwitness.co.uk

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Courts deal with spate of dental misdemeanours [BIRMINGHAM COURTS DEALT with a brace of dentistry-

associated cases in June. A dentist who had been removed from the register of dental care professionals after failing to pay the annual fee in 2013 was prosecuted for continuing to offer dental services. Hasnain Rehemtulla pleaded guilty to unlawfully practising dentistry and was ordered to pay over £12,000 by Birmingham Magistrates’ Court. The General Dental Council (GDC) launched an investigation into Mr Rehemtulla following a complaint from a patient in October last year. The complainant alleged that the defendant had sold 'unbreakable dentures' to the patient, which eventually caused a large abscess requiring strong antibiotics to resolve. In January this year, undercover GDC investigators visited Ayman's Prosthetics, where Mr Rehemtulla claimed to be a dental technician and indicated he could provide new dentures. Under Section 38 of the Dentists Act 1984, it is an offence for anyone not correctly registered with the GDC to practise dentistry, including the provision of dentures. Furthermore, Mr Rehemtulla's lack of registered status means he was providing dental services without valid insurance, placing the public at even greater risk. Katie Spears, head of illegal practice at the GDC, said: “Our primary purpose at the GDC is to protect the public from harm. Regardless of the qualifications an individual may have gained in the past, unless they are currently registered with the GDC, fully insured to practise and up to date with professional development requirements, they pose a real risk.” Another Birmingham resident, Naomi Austin, pleaded guilty to offering illegal tooth whitening while falsely claiming to be a dental hygienist. She was ordered to pay over £2,000 by Birmingham Magistrates’ Court. After receiving a complaint in December last year, the GDC launched

an investigation and this January Ms Austin revealed to undercover investigators that she was prepared to carry out the practice of dentistry, namely tooth whitening. Under the Dentists Act 1984, and following the High Court's ruling in GDC v Jamous, the legal position in relation to tooth whitening is very clear. The treatment can only be performed by a dentist or a dental therapist, dental hygienist or a clinical dental technician working to the prescription of a dentist. Elsewhere, the current spate of illegal tooth whitening cases involved the world of celebrity, when former Liverpool reality TV star Chelsey Harwood was ordered to pay more than £11,000 by Liverpool Magistrates' Court. Ms Harwood, who failed to attend court for sentencing on 3 May, was found guilty of the offence – also in her absence – at a hearing on 19 April. In passing sentence, District Judge Shaw commented that Ms Harwood's income was akin to commercial crime, with the potential of earning £2,500 per week or £10,000 per month and that there was a realistic and fair suspicion that not all income was declared for tax. q

Access to dentists could reduce paracetamol overdoses, study finds [A PRIZE-WINNING STUDY by

maxillofacial surgeons has found that selfmedication with paracetamol for dental pain is a significant cause of accidental overdose, leading to potential liver failure.

According to the study, by the winners of the 2017 British Association of Oral and Maxillofacial Surgeons Members’ Prize, the problem has cost Queen’s Medical Centre in Nottingham over £50,000 in admissions over

a two-year period alone – without including the medical care costs. An average of at least three people a week were admitted through the hospital’s emergency department with accidental

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paracetamol overdose during the study, which resulted in 123 overnight stays for the dental FDVHV DORQH 7KH 1+6 HVWLPDWHV LW FRVWV Â&#x2026; for an overnight hospital stay and healthcare costs are extra. The authors of Dental pain management Â± D FDXVH RI VLJQLÂ¿FDQW PRUELGLW\ GXH to paracetamol overdose are calling for immediate improved access to dentists during the working week and better patient advice on using analgesia for dental pain. The three oral and maxillofacial surgeons ZKR FDUULHG RXW WKH VWXG\ Â± /DXUD 2Â¶6XOOLYDQ 1DEHHOD $KPHG DQG $QGUHZ 6LGHERWWRP Â± UHYLHZHG WKH FDVHV RI SDWLHQWV ZKR attended the emergency department and set out to determine whether dental pain was a key factor in accidental paracetamol

overdose, and what the resulting cost and EXUGHQ WR WKH 1+6 ZDV &R DXWKRU DQG MXQLRU WUDLQHH /DXUD 2Â¶6XOOLYDQ VDLG Â³2XU VWXG\ UHYHDOHG WKDW lack of access to emergency dental care is a contributory factor to paracetamol overdose, as well as poor understanding among dental professionals about the safe levels of analgesia self-medication. The study data shows that 55% of the cases we reviewed had contacted their dentist, but had still QHHGHG HPHUJHQF\ KRVSLWDO DGPLVVLRQ Â´ The use of paracetamol to self-medicate for dental pain relief is increasingly common, with the wide availability of the drug from chemists and supermarkets. Accidental overdose remains a major public health problem that is causing an increase in emergency hospital

admissions, as well as admissions to acute liver units. Co-author and senior trainee Nabeela Ahmed pointed out that managing the primary cause of pain would reduce the risk of significant ill health from paracetamol overdose. Â³7KH GDWD IURP RXU VWXG\ IRXQG WKDW RI WKH GHQWDO FDVHV UHTXLUHG DGPLVVLRQ WR WKH DFXWH PHGLFDO XQLW Â´ VKH H[SODLQHG Â³2IIHULQJ tailored medication advice will help to keep patients comfortable until an appointment ZLWK WKH GHQWLVW LV DYDLODEOH Â± DQG SUHYHQW DFFLGHQWDO RYHUGRVH Â´ Â³:HÂ¶OO EH XVLQJ WKLV VWXG\ WR WU\ DQG LQÃ&#x20AC;XHQFH EHWWHU GHQWDO FDUH DFURVV WKH 1+6 DQG UHGXFH WKH SUHVVXUH RQ 1+6 EHGV Â´ /DXUD 2Â¶6XOOLYDQ FRQFOXGHG T

Scottish dentists criticise lack of clarity in Improvement Plan >THE %ULWLVK 'HQWDO $VVRFLDWLRQ LQ 6FRWODQG KDV FDOOHG RQ WKH

6FRWWLVK *RYHUQPHQW WR SURYLGH FODULW\ DQG GHWDLO RQ LWV 2UDO +HDOWK Improvement Plan, as new survey evidence revealed deep concerns DPRQJ GHQWLVWV Â± ZLWK SURIRXQG XQFHUWDLQW\ RYHU LPSOHPHQWDWLRQ DQG the absence of any new investment. 1HDUO\ WZR WKLUGV RI 1+6 GHQWLVWV ZKR UHVSRQGHG WR D %'$ survey had a 'negative' or 'very negative' impression of the plan and

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around 65% had a 'negative' or 'very negative' outlook for the future. 2YHU WKUHH TXDUWHUV KDG FRQFHUQV DERXW Â¿QDQFLDO YLDELOLW\ DQG how the plan will be funded. Almost 70% of respondents viewed the proposals to reduce the IUHTXHQF\ RI GHQWDO FKHFNV QHJDWLYHO\ DQG RYHU KDG FRQFHUQV about the proposed reduction in scale-and-polish treatments. )HHGEDFN IURP GHQWLVWV KDV TXHVWLRQHG KRZ PHDQLQJIXO UHIRUP LV possible without extra government funding, with the plan raising new IHDUV RYHU WKH Â¿QDQFLDO VXVWDLQDELOLW\ RI KLJK VWUHHW 1+6 SUDFWLFH 0RUDOH DPRQJ WKH GHQWDO SURIHVVLRQ LV DW DQ DOO WLPH ORZ 'HQWLVWV KDYH IDFHG D IDOO LQ UHDO LQFRPHV VLQFH WKH Â¿QDQFLDO FUDVK Â± D GURS ZLWKRXW SUHFHGHQW LQ WKH 8. SXEOLF VHFWRU 5HFUXLWPHQW DQG UHWHQWLRQ problems are now endemic, with recent surveys indicating that over half RI \RXQJ DQG QHZO\ TXDOLÂ¿HG GHQWLVWV SODQ RQ OHDYLQJ WKH VHUYLFH LQ WKH QH[W Â¿YH \HDUV %'$ 6FRWODQG KDV long advocated the principles at the heart RI WKH SODQ Â± LQFOXGLQJ a focus on prevention, the move to tackle oral KHDOWK LQHTXDOLWLHV DQG addressing the care of the elderly. However, dental leaders have warned that the lack of GHWDLO LQ WKH SODQ Â± RQ YLWDO LVVXHV LQFOXGLQJ IXQGLQJ DQG WLPHVFDOHV Â± and lack of involvement from the profession in implementation, could SXW 1+6 VHUYLFHV DW ULVN ,WV FKDLU 5REHUW 'RQDOG VDLG Â³7DON IURP JRYHUQPHQW RQ SUHYHQWLRQ DQG WDFNOLQJ KHDOWK LQHTXDOLWLHV LV ORQJ RYHUGXH EXW ZLOO UHPDLQ ZDUP ZRUGV XQWLO WKH\ DUH EDFNHG XS ZLWK QHHGHG LQYHVWPHQW 9XOQHUDEOH older patients deserve oral health care tailored to their needs; but this plan fails to spell out how it can be provided safely and effectively, or KRZ LW ZLOO EH SDLG IRU 6DGO\ ZKLOH RIÂ¿FLDOV KDYH VNHWFKHG RXW WKH ELJ issues, they have skimped on the detail. Â³7KLV VHUYLFH KDV EHHQ KDPPHUHG E\ \HDUV RI DXVWHULW\ Ã&#x20AC;DW OLQLQJ PRUDOH DQG SROLWLFDO LQGLIIHUHQFH 1+6 GHQWLVWV KDYH OHG WKH FDOOV IRU D plan, but now aspirations must be matched with real commitment from ministers and a willingness to involve practitioners in the process. Â³1+6 GHQWLVWU\ LQ 6FRWODQG LV UXQQLQJ RQ HPSW\ DQG IDFHV DQ XQFHUWDLQ IXWXUH ,I UHIRUP VWDQGV D FKDQFH LW KDV WR EH GRQH ZLWK Â± DQG QRW WR Â± IURQWOLQH KHDOWK SURIHVVLRQDOV Â´ T

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