Your Expert Witness Issue 46 by DMMonline

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contents IN THIS ISSUE 7

Opening Statement

NEWS 8 Fall in police complaints masks differences in approach 8 Law Society: government proposals threaten human rights 9 Employment tribunals come under scrutiny 9 Sixth jailing completes FCAâ&#x20AC;&#x2122;s largest fraud case 11 Green lawyers set out hopes for post-Brexit future 11 TCC judgement carries a warning for engineers BUILDING & CONSTRUCTION 12 RICS offers an update on construction law 12 5,%$ FRQVXOWV RQ Â¿UH SODQ HEALTH & SAFETY 13 IOSH chief calls for more emphasis on rail safety 13 'HYHORSHU Â¿QHG Â&#x2026; P IRU JDV RIIHQFHV TREES AND THE LAW 14 Revised planning framework gets two cheers from arborists 14 Tree-felling protestersâ&#x20AC;&#x2122; complaint upheld

ANIMAL WELFARE AND BEHAVIOUR 15 New rules will protect puppies from abuse 15 Is Brexit good for animals? 16 Get expert opinion on equestrian matters straight from the horseâ&#x20AC;&#x2122;s mouth 17 What issues need to be considered by a forensic veterinary surgeon? FORENSIC ACCOUNTACY 18 How many routes to resolution? 20 $UELWUDWLRQ RU PHGLDWLRQ ZKLFK LV D EHWWHU Â¿W IRU \RXU GLVSXWH" FORENSICS 21 Lords forensic science inquiry prepares to take oral evidence 21 Consultation closes on CoP for forensic gait analysis INVESTIGATION AND LITIGATION SUPPORT 23 Legal services experts can lighten the load CULTURAL, RELIGIOUS & ETHNIC ISSUES 24 The burqa question: what are the facts?

TRANSLATING & INTERPRETING 25 AI will change, not replace, human interpreting, says futurist expert 25 Translatorsâ&#x20AC;&#x2122; register to join that of interpreters A to Z WEBSITE GUIDE 22 Our A to Z guide to the websites of some of the countryâ&#x20AC;&#x2122;s leading expert witnesses.

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Your Expert Witness

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MEDICAL ISSUES 27 Medical Notes

NEWS 28 GMC responds to Bawa-Garba decision 28 CQC prosecutes illegal care provider 29 Blame culture and safety fears top doctors’ list of concerns 30 Failed trials: scientists discover why 30 Research identifies tests for bleeding after stroke TOXICOLOGY 31 Poisons Service report published CHOOSING THE CORRECT EXPERT 33 Advice for experts is as relevant now as it was then 33 Sometimes it’s the doctor that needs an expert opinion PSYCHIATRIC & PSYCHOLOGICAL ISSUES 34 Capacity in injury litigation: how is the assessment made? 37 More psychologists are in court – and that’s a good thing! 37 Students taking ADHD drugs risk memory impairment 38 Annual lecture examines PTSD 39 Medication and dementia – a new approach is needed

PAIN 41 To what extent can CRPS be defined as a psychological condition? DENTISTRY & MAXILLOFACIAL SURGERY 43 BDA calls for changes in cereal packaging laws 43 Mouth modifications could be fatal, surgeons warn 44 Threat of fines drives away patients, says BDA 45 The dental expert: no longer a hired gun, but still a valuable asset OPHTHALMOLOGY 47 AI system can match experts at detecting eye disease 47 Eye tests essential for fall prevention 48 New standards aim to improve patient care CARDIOLOGY 49 Patients with pacemakers should have equal access to MRIs 49 New drugs could help prevent heart disease ORTHOPAEDICS 51 Consent in surgical practice 52 Missed fracture leads to compensation 52 Shake-up proposed for north London orthopaedics

ORTHOTICS 53 Orthotists can provide evident relief 53 Foot drop awareness has its day VEINS & VASCULAR INJURIES 55 Deep vein thrombosis: what if it’s not a DVT? PLASTIC, RECONSTRUCTIVE & HAND SURGERY 57 Plastic surgery death prompts response from British surgeons OBSTETRICS & GYNAECOLOGY 58 Report highlights issues in obstetric anaesthesia 59 Digital records will aid information sharing 59 Midwives shocked by FGM report HEARING LOSS 60 Noise at work: share your experiences 60 Mindfulness helps tinnitus sufferers www.yourexpertwitness.co.uk

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Opening Statement [THE LAW SOCIETY is one of many august organisations throwing up their hands in horror at some of

the implications of the Counter-Terrorism and Border Security Bill, which recently passed through its second reading in the Commons. A rash of new measures throw a wide net around a large group of people without seeming to ask the question of whether they have actually done anything wrong. And having apprehended those people, the Bill seems to set no limits on the sanctions that can be imposed on them. The Bill has been described as ‘Orwellian’ by some and bordering on ‘thought crime’ by the UN. Two aspects of the proposed law in particular were highlighted by the Law Society: allowing the police to question a suspect without a lawyer being present and preventing suspects from having confidential access to their lawyer. • Despite all the concerns, there has been a fall in the number of complaints against the police in the past year. A cause for rejoicing – or is it? Critics point to a change in the way the police record complaints as a possible cause of the fall. Some forces are assiduous in investigating all complaints, while others use a ‘less formal’ procedure. The second-commonest reason for complaint, however, is described as ‘incivility, impoliteness and intolerance’. Inspector Regan will be turning in his grave. • One instance where the police did appear to act with an excess of ‘incivility’ was in the arrest of a number of protestors in Sheffield, angry about a largely-discredited programme of felling trees in a number of suburbs of the city. The arrests were described by the police watchdog as ‘inappropriate’ and the officers involved are to be given ‘words of advice’. A storm in a teacup, it may seem, if South Yorkshire Police didn’t have a bit of previous. • Protection of trees is also the aim of a revision of the National Planning Policy Framework. The framework has already come under fire from a number of quarters and may even be illegal, according to some. Campaigning by organisations such as the Woodland Trust has brought about a rethink. • New legislation also protects animals – in particular puppies – from the worst excesses of callous breeders and dealers. What became known as ‘puppy farming’ led to an outpouring of indignation among this nation of animal lovers. The new legislation goes some way to rectify the harm – not least by unifying the policies of different local authorities and introducing a uniform licensing system. The ubiquity of adverts on local websites for puppies and other pets (my local selling site appears awash with snakes) will hopefully be curtailed. • Protection of the public is to the fore with new figures from the Office of Road and Rail, which detailed the number of people killed or injured on the railways in the last financial year. There are still a worrying number of casualties, particularly among those working on the railway – and there was a spike in the number killed who were neither workers nor passengers. The chair of IOSH’s railway group sees the solution as lying in improved management of the risks to health and safety at a senior management level, alongside increasing scrutiny of the industry’s finances. • No amount of risk analysis can bring back the people who died in the conflagration at Grenfell Tower, but it may help to prevent similar tragedies happening again. That is the hope of the RIBA, which has put out to consultation its updated Plan of Work for Fire Safety. The architects’ professional body has reacted to Dame Hackitt’s recommendations, rather than waiting for the wheels of legislation to grind into motion. q

Ian Wild

Ian Wild, Director of Business Development Your Expert Witness

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Fall in police complaints masks differences in approach [AN OVERALL FALL in the number of

complaints against the police masks wide discrepancies in the way police forces handle them, according to the Independent Office for Police Conduct (IOPC). The national police complaints statistics for England and Wales 2017/18 show that some forces choose to formally investigate most allegations made against them, while others use the less formal ‘local resolution’ process. That points to an overly complex complaints system, and changes coming into effect next year to simplify complaints handling are welcomed by the IOPC. The statistics show that: • A total of 31,671 complaints were recorded by forces – a decrease of 7% on last year’s figure. • Each complaint may consist of more than one allegation, and there was a small reduction in the number of allegations recorded. A total of 274 allegations per 1,000 employees were recorded, compared to 279 in 2016/17. •The proportion of allegations being dealt with by the less formal local resolution process varies between 10% and 75% across forces in England and Wales. In addition, 39% of complaints made against police fall into a broadly-defined ‘other neglect or failure in duty’ category. The second-largest category – that of ‘incivility,

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impoliteness and intolerance’ – accounted for 12% of all complaints. IOPC director general Michael Lockwood said: “At the heart of a complaint is someone unhappy with the service they received, or the way they have been treated by their police force. What’s more important than the overall numbers is how complaints are viewed by the forces themselves. They offer forces a great

opportunity to learn from and address any common concerns that their local communities express. Done properly, this can be really positive for police and community relations.” A number of changes to the complaints system are to be introduced next year. The IOPC plans to improve how allegations are defined, so the categories provide more clarity about what specifically is being complained about. q

Law Society: government proposals threaten human rights [FUNDAMENTAL LEGAL RIGHTS could be put at risk if the government proceeds with the

Counter-Terrorism and Border Security Bill in its current form, the Law Society of England and Wales has warned. “Everyone under suspicion of a crime should be able to access confidential legal advice, particularly when facing serious charges,” said Law Society president Christina Blacklaws. “The idea people could be questioned for an hour before being able to get legal advice runs against all the usual standards of justice. “Even after an hour, a suspect would have to proactively request a solicitor, rather than being offered legal support. The government needs to ensure everyone suspected of a crime is entitled to a solicitor and properly informed of their legal rights.” “Even when a solicitor is present, the bill currently only allows the suspect to consult them when an officer is listening in,” she said. “The confidential nature of communication between a lawyer and their client has long been affirmed as a fundamental human right.” q

Employment tribunals Sixth jailing completes come under scrutiny FCA’s largest fraud case [THE JURISDICTION of employment tribunals – and the areas where they share jurisdiction with the civil courts to hear employment and discrimination claims – are being reviewed by the Law Commission. The commission has been conducting a consultation, running from 26 September to 5 October, asking questions about many areas of shared and exclusive jurisdiction to hear employment law and discrimination law claims. Law Commissioner Nicholas Paines QC said: “The Law Commission welcomed the opportunity to conduct an independent review of the areas of shared and exclusive jurisdiction of employment tribunals and civil courts. While this involves a review of technical laws rather than fundamental policy, it can deliver real benefits for the courts and tribunals system and its users. “The proposals and questions in our consultation paper identify aspects of employment tribunals’ and the civil courts’ areas of jurisdiction which could be adjusted so as to bolster their ability to resolve as much of a dispute as effectively and justly as possible in one venue.” The background to the consultation was a Civil Courts Structure Review led by Lord Justice Briggs, which noted that there is an ‘awkward area’ of shared and exclusive jurisdiction in the fields of discrimination and employment law, which has generated boundary issues between the courts and the employment tribunal system. Employment tribunals sit ‘uncomfortably stranded between the civil courts and the main tribunal service’. The issues are well known among employment law experts, judges and practitioners. They can cause delay and can also prevent cases being determined by the judges best equipped to handle them. q

[FRAUDSTER MICHAEL NASCIMENTO has been sentenced

to 11 years’ imprisonment for his role in a share scam carried out through a series of ‘boiler room’ companies, which led to the loss of more than £2.8m of investors’ money. He was the controlling mind, instigator and the main beneficiary of the fraud, the court heard. Between July 2010 and April 2014, members of the public were cold-called and subjected to high-pressure sales tactics to persuade them to purchase shares in a company that supposedly owned land on the island of Madeira, where Nasciemento’s family hailed from. The investors were told that the value of the shares would increase substantially when permission to build 20 villas was granted, thereby enhancing the land’s value. Investors were promised guaranteed returns of between 125% and 228% – none were ever paid. Investors’ money was used to maintain the fraud, and particularly to fund the lifestyle of Nascimento. Over 170 members of the public invested more than £2.8m in the shares. Many were elderly or vulnerable, and lost life-changing sums. The sentencing on 17 September follows that of five other individuals involved in the same fraud on 4 September. It takes the total imprisonment for all six individuals to 28.5 years. Mark Steward, executive director of enforcement and market oversight at the FCA, said: “This brings to an end the FCA’s largest fraud prosecution, which has seen the perpetrators imprisoned for a total of 28.5 years, affording justice to victims who were the subject of their calculated deception. We are continuing to fight for compensation for victims out of their assets.” q

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Green lawyers set out hopes for post-Brexit future [THE UK Environmental Law Association (UKELA) – the

independent association of environmental lawyers – has submitted its response to DEFRA’s consultation on establishing environmental principles and a new body to safeguard the environment post-Brexit. Since the consultation started the new provisions of Section 16 of the EU (Withdrawal) Act 2018 have mapped out what the minimum environmental principles will be and that the new environmental body overseeing government will have the power to take legal proceedings if necessary. UKELA's response explains the options for an independent court or tribunal to ensure that the new body can pursue the ambition of holding government and other public bodies to account for significant breaches of environmental law. UKELA has set out a number of options to help ensure that there will be a suitable system for environmental law enforcement by the new body. These include expanding the role of both the Planning Court and the Environment Tribunal, or establishing a specialist environmental court or tribunal that would have a comprehensive jurisdiction for the administrative, civil and criminal enforcement of all environmental law. Peter Harvey, chair of UKELA’s Brexit task force, stated: “We welcome that the government has recognised this is such an important opportunity to put in place a robust post-Brexit legal framework to protect the environment. It should ensure that there is no serious governance gap when the European Commission is no longer holding our public bodies to account for complying with environmental law. We recommend that the environmental body should have a toolkit of effective enforcement powers, which ultimately includes legal proceedings.” q

TCC judgement carries a warning for engineers [ON 25 JULY the Technology and Construction Court handed down judgment in the case of BDW Trading Ltd v Integral Geotechnique (Wales) Ltd [2018] EWHC 1915 (TCC) The case arose out of the purchase of land by developer BDW which turned out to be contaminated by asbestos, leading to considerable clean-up costs. BDW mounted a claim for negligence against geotechnical consultants IGT on the basis that their report – made out for the vendors, a local authority – had not adequately identified the risk of the presence of ACMs on the site. The claim failed on the basis that IGT was contracted solely with the local authority and not with BDW. Although the local authority could have assigned the report to the eventual purchaser, it failed to do so. The implication for engineers is that, had the report been properly assigned, BDW may have been able to bring a claim against IGT. In the wake of the judgement, the Association of Geotechnical and Geoenvironmental Specialists (AGS) have published guidance on the duty of care owed by engineers. LPA 68 – Guidance on Duty of Care arising from Third Party reliance on a geotechnical report: BDW Trading Ltd v Integral Geotechnique (Wales) Ltd [2018] EWHC 1915 (TCC). The AGS comments: “This judgment serves as a useful reminder of the significant commercial value of formal assignments of reports (or collateral warranties or letters of reliance) to potential purchasers and other third parties. By agreeing to such mechanisms, consultants are creating entirely new liabilities that they would not otherwise have.” q

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RICS offers an update on construction law [THE Royal Institution of Chartered Surveyors is once more

mounting its Legal Issues in Construction conference this year. The conference will be held on 6 November at the Cavendish Conference Centre, in London’s Marylebone, and will qualify for 5.5 hours of formal CPD. This year’s programme will provide crucial updates and expert advice and guidance, and has been developed in partnership with Pinsent Masons and Keating Chambers – the leading law firm and chambers operating in the sector. The construction industry is increasingly complex and challenging, as are the legal risks involved. That makes it imperative for professionals in the sector to keep up-to-date with recent case legislation and developments. Highlights of the conference allow those attending to: • Benefit from an examination of recent case law developments • and outcomes to ensure they are up-to-speed on recent • judgements and legal precedent. • Hear from an expert panel of speakers offering leading legal • advice on a range of contentious issues, with the potential to • directly impact on business practices. • Take away practical knowledge and tools to apply in their own • business for avoiding legal pitfalls. • Have their questions answered and benefit from the experience of • others with time specifically set aside for both Q&A and networking. A number of presentations will look at a range of issues, from fair payment practice and market trends to time delays and the inevitable examination of the Carillion affair – plus, of course, the effect of Brexit. q

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RIBA consults on fire plan [THE RIBA has launched a consultation on the draft of a new

Plan of Work for Fire Safety. Developed in collaboration with the Association for Specialist Fire Protection, the new process map and management tool sets a framework for best practice behaviours to ensure the life safety of building users. Following the devastating fire at Grenfell Tower the RIBA has consistently called for changes to building regulations, including the strengthening of requirements on cladding, sprinklers and means of escape, and clarification on the responsibilities of those who design, construct and manage buildings. The new document is designed to address Dame Judith Hackitt’s call for ‘greater transparency, accountability and collaboration’ from industry. “The Plan of Work for Fire Safety is a vital resource for design and construction teams and building owners, providing much needed clarity on fire safety roles and responsibilities at every stage of the process,” said RIBA director of practice Lucy Carmichael. “We cannot wait for longer-term regulatory change to come into force; the construction industry needs immediate guidance.” Fire safety considerations will be embedded from the start by involving building control, the fire and rescue authorities, building managers and tenants more closely from an early stage. The RIBA is now encouraging its members and other industry professionals to provide detailed feedback on the draft document, which will be an important step to further strengthen consideration of fire safety in all aspects of building design, procurement, construction and maintenance. The consultation is open until 15 October. q

IOSH chief calls for more emphasis on rail safety [A RAILWAY SAFETY EXPERT is calling on industry bosses

to lead from the front in ensuring risks to people are managed as effectively as those posed to their business. The call came as new figures revealed the number of fatalities and injuries in the industry last year. Published by the Office of Road and Rail, the figures reveal that there were seven passengers and two workers killed on the UK’s railways in 2017-18 – compared with 15 and one respectively the previous year. Meanwhile, there were 337 fatalities involving members of the public: those defined as neither passengers nor workers – up from 309 in 2016-17. Many more were injured, with 318 passengers suffering ‘major injuries’ on the mainline alone. While there were 6,661 injuries to workers, 164 of which were classed as major. David Porter, chair of the Institution of Occupational Safety and Health’s railway group, said that, while the industry is a safer place to travel and work compared with previous decades, the fact that people are still being killed and injured demonstrates the need for continued focus. Mr Porter said: “The statistics cannot convey the suffering and loss to family, friends and colleagues from the death of a loved one, or the on-going pain and suffering to those injured. And these figures don’t take account of how many workers have become ill as a result of work activities. “IOSH believes the industry needs to do much more together and ensure it has learned from past accidents to improve health and safety across all rail transportation to help get passengers and the work force home safely every day.

“In our view, there would be benefit in greater attention on the capabilities and competence of senior industry leaders to effectively govern and manage health and safety risks. As scrutiny of financial performance increases, strong leadership on health and safety is necessary to ensure that there is appropriate attention on the risks to people, as well as the risks to the business.” The call came just 158 years to the month after the first fatal railway accident. Liverpool MP William Huskisson was run over by Stephenson’s famous Rocket locomotive during a procession marking the first ever commercial railway journey. q

Developer fined £1m+ for gas offences [A NATIONAL HOUSEBUILDER has been fined £1.25m after

exposing members of the public to carbon monoxide fumes at a development near Milton Keynes. Aylesbury Crown Court heard that, on 11 December 2014, a number of gas installations in an apartment block in Wolverton were found to be either immediately dangerous or at risk, following the report of a smell of gas by a householder. An investigation by the HSE found that Willmott Partnership Homes Ltd built the flats several years before the incident, and in 2014 some remedial work needed to be carried out on an external wall. During the demolition and reconstruction of the wall, many live flues of gas boilers were removed damaged and blocked, exposing the residents to a risk from carbon monoxide poisoning. Willmott Partnership Homes Ltd, as the principal contractor, had not ensured that an adequate system of work was in place to manage the risks from working around the live flues. Speaking after the hearing, HSE inspector Stephen Faulkner said: “Risks from gas installations, including those related to carbon monoxide, need to be managed by all during refurbishment. “This incident could have been avoided if the company had implemented a safe isolation system for the live boilers.” q www.yourexpertwitness.co.uk

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Revised planning framework gets two cheers from arborists >THE ARBORICULTURAL ASSOCIATION (AA) has welcomed the revised National Planning Policy Framework, which gives ancient and veteran trees greater protection. Under the guidelines, published in July, they will only be removed for â&#x20AC;&#x2DC;exceptional reasonsâ&#x20AC;&#x2122;. The association said: â&#x20AC;&#x153;Congratulations to our friends at the Ancient Tree Forum and the Woodland Trust after their dedicated campaigning for these improvements.â&#x20AC;? The AAâ&#x20AC;&#x2122;s response to the consultation reiterated the need for greater protection for ancient and veteran trees, but also sought to include urban trees in the framework. So, while it welcomed the news as a step forward, it expressed itself as being â&#x20AC;&#x153;â&#x20AC;Śdisappointed that urban trees were not included, having argued strongly for them.â&#x20AC;? Trees in urban areas are being neglected and removed to save money for other services, it declared. Âł7KH UHYLVHG 133) ZDV D JUHDW RSSRUWXQLW\ WR UHĂ&#x20AC;HFW WKH YDOXH RI urban trees and in turn empower LPAs to recognise this in robust planning policies and decisions,â&#x20AC;? the AA commented. The revised NPPF states: â&#x20AC;&#x153;Development resulting in the loss or deterioration of irreplaceable habitats (such as ancient woodland and ancient or veteran trees) should be refused, unless there are exceptional reasons and a suitable compensation strategy exists.â&#x20AC;? The AA urges that â&#x20AC;&#x153;â&#x20AC;Śdespite the good news, itâ&#x20AC;&#x2122;s important that we don't become complacent and that the new framework receives effective enforcement at local level.â&#x20AC;?

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Commenting on the change, AA member Rob Crussell said: â&#x20AC;&#x153;Thanks to the vigilance and hard work of organisations like the Woodland Trust and the Ancient Tree Forum â&#x20AC;&#x201C; and the active, committed members who make up those organisations â&#x20AC;&#x201C; we have an updated National Planning 3ROLF\ )UDPHZRUN WKDW LQFOXGHV EHWWHU GHÂżQLWLRQV DQG XSJUDGHG protection for ancient woodland and ancient and veteran trees. â&#x20AC;&#x153;Only time will tell what these changes will look like in practice, but I am optimistic. We have also avoided the potential weakening of protection measures for veteran trees that was proposed in the draft publication. This could not have been achieved if we werenâ&#x20AC;&#x2122;t an active, engaged industry and this is a real testament to how far weâ&#x20AC;&#x2122;ve advanced in the past few decades.â&#x20AC;? T

Tree-felling protestersâ&#x20AC;&#x2122; complaint upheld

>FIVE PROTESTERS who were arrested and detained by South

Yorkshire Police have had their complaints upheld by the Independent 2IÂżFH IRU 3ROLFH &RQGXFW ,23& 7KH ÂżYH ZHUH DOO DUUHVWHG XQGHU WKH Trade Union and Labour Relations Act, following their protesting against WUHH IHOOLQJ LQ 6KHIÂżHOG $OO ÂżYH ZHUH FKDUJHG EXW WKH FULPLQDO FDVHV ZHUH GLVFRQWLQXHG following a review by the CPS. In a letter dated 23 August the IOPC found that none of the arrests, or their detention, was appropriate. The IOPC recommended that management action in the form of words of DGYLFH VKRXOG EH JLYHQ WR WKH DUUHVWLQJ RIÂżFHUV DERXW WKH LPSRUWDQFH RI identifying the correct necessity criteria for an arrest. Commenting on the decision, one of the protesters, Jeremy Peace, said: â&#x20AC;&#x153;In my view, the police were determined to support the interest of the tree fellers over the right of peaceful protestors. I am pleased my complaint has been upheld and hope South Yorkshire Police can learn from this episode.â&#x20AC;? Iftikhar Manzoor of Howells Solicitors, who acted for the protesters, said: â&#x20AC;&#x153;I am pleased that the IOPC found in my clientsâ&#x20AC;&#x2122; favour. My clients were lawfully exercising their rights to protest against the tree felling programme and passionately believe that they were acting peacefully at all times. They were rightly concerned about the actions of some 6<3 RIÂżFHUV LQ DUUHVWLQJ DQG GHWDLQLQJ WKHP ZKLFK WKH ,23& GHFLVLRQ vindicates.â&#x20AC;? T

New rules will protect puppies from abuse [ON 1 OCTOBER Defra introduced the Animal Welfare

(Licensing of Activities Involving Animals) England Regulations 2018. The regulations protect the welfare of animals being bred and sold commercially, particularly puppies, as well as ensuring better standards in the wider pet industry. The new regulations will ensure that breeders must show puppies alongside their mother before a sale is made and ban licensed sellers from dealing in puppies and kittens under the age of eight weeks. Puppy sales must now also be completed in the presence of the new owner – preventing online sales where prospective buyers have not seen the animal first. In addition, the new rules regulate adverts – including on the internet – by ensuring licensed sellers of all pets include the seller’s licence number, country of origin and country of residence of the pet in any advert for sale. A new ‘star rating’ has been introduced for dog breeders, pet shops and others to help people rate them on their animal welfare standards. Animal Welfare Minister David Rutley said: “These regulations will end mistreatment and malpractice of puppies and crack down on unscrupulous breeders, so pet owners will have no doubt their new dogs have had the right start in life. “The licensing systems for businesses that work with animals have not been reformed for almost 50 years. The changes in place from today simplify these into one system for local authorities, help consumers to make better informed decisions and will further improve animal welfare. “These changes form part of our efforts to ensure we have the highest animal welfare standards in the world. This includes making CCTV cameras mandatory in all slaughterhouses, as well as our

Is Brexit good for animals?

[A MAJOR DEBATING POINT among the many people

concerned with animal welfare in the UK is the effect that Brexit will have on the protection of animals – both wild and domestic. According to the RSPCA, currently 80% of the UK’s animal welfare law comes from the EU. That includes 18 specific pieces of law and, crucially, all of the UK’s existing law on farm animal welfare. The EU (Withdrawal) Bill nationalises all of those laws in the immediate term post-Brexit. The charity sees that as a welcome step. “But,” says the RSPCA, “it is equally important that this new domestic legislation is not subsequently ‘unpicked’ and standards reduced as a result.” There is the spectre of protection being eroded as a result of UK farmers being forced into a price war against cheap imports from countries with less stringent standards. A report from the House of Lords last year warned that it poses the greatest threat to farm animal welfare standards. The issue will be the subject of a session at this year’s London Vet Show, taking place at London’s ExCeL on 15-16 November. The session will be chaired by Simon Doherty, the president of the British Veterinary Association, and the headline speaker will be Angela Smith MP, who sits on the Environment, Food and Rural Affairs Committee. As politicians prepare to hammer out the detail of the key pieces of legislation on post-Brexit trade and agriculture, the session will hear two sides of the debate on whether Brexit will be good or bad for animals. q

plans to increase prison sentences from six months to five years for animal abusers.” A key part of these new licences will be the new ‘star rating’ (out of five) for dog breeders, pet shops and other licensed activities involving animals. It rates those businesses on welfare and other grounds and helps buyers use the best breeders – as well as helping local authorities to regulate those that are poorly rated more closely. The new regulations follow a three-year Scrap the Puppy Trade campaign mounted by the RSPCA, which called on the government to crack down on the illegal, underground puppy trade by bringing in stricter licensing of breeders and sellers. The RSPCA’s deputy chief executive Chris Wainwright declared: “For years the RSPCA has been campaigning for tougher legislation around animal businesses and better licensing of those who breed and sell pets. We were particularly concerned about the multimillionpound puppy industry in England and Wales and have seen firsthand the devastating impact the underground puppy trade has on both dogs and people. “We believe that these new regulations, which focus on prioritising the welfare of the animals, will really help crackdown on these unscrupulous breeders and dealers, and crucially will ban the selling of dogs bred in England unless from the place they were bred. This will give the consumers the transparency they've been missing and, if properly enforced, we could see the end for puppy farms here in England.” q

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Get expert opinion on equestrian matters straight from the horse’s mouth Dr DEBBIE MARSDEN, a leading equestrian expert with over 20 years professional experience of expert witness work, offers some advice to take into account when considering taking on a horse-related case

[HORSE-RELATED CASES and ‘horsy’ clients provide a variety

of challenges for instructing solicitors. There is a lot of jargon to get through and common horse-dealing practices make brain surgery or rocket science look like child’s play! Prospective clients may feel more comfortable with a specialist equestrian lawyer, or one who rides or owns horses – who speaks their language and seems to know one end of a horse from the other. It can, however, be much more cost effective for clients to use a local solicitor, saving time and money travelling to meetings and incurring lower costs for court attendance. With numbers of horses and horse owners still increasing steadily, in all socio-economic classes, the equestrian market is potentially a lucrative one for the non specialist.

To sue or not to sue

With horse-riding considered by insurers to be a high-risk sport and the modern myth that ‘horses are unpredictable’, many people believe that horse-related accidents are part of everyday life around horses and that no-one is to blame, so they do not seek redress or are easily put off doing so. There are, indeed, many horse-related accidents which are neither predictable nor preventable, but also many which are; and if you don’t have the knowledge yourself to tell the difference, you need assistance. Popular websites, although convenient and free, often include misinformation – and on a subject you are not familiar with, they can be an unreliable resource. Be wary of taking advice from a horsy friend or the girl in the office who used to ride, as – however well-intentioned – their opinion may be based on very limited knowledge or experience compared to that of a well-qualified and experienced equestrian expert. Such an expert will have a broad range of professional experience, be familiar with common practices and, most importantly, be able to back that up with

reference to industry-standard guidelines, where simple, practicable and inexpensive procedures to keep people safe around horses are written down. They assist claimants and defendants alike, as they make clear what responsible equestrians acting reasonably should do, and are difficult to argue with. Involving an expert at an early stage can save a great deal of unnecessary work, as the issues complained of can be quickly whittled down to those which may have had a causal effect on what happened and precisely where any fault may have been. If, in the expert’s opinion, there was no blame, you will not waste time and the client’s money pursuing a hopeless cause, and be able to disappoint a potential claimant with a clear conscience.

Who to choose

Choose an expert with both academic and professional qualifications, together with practical equestrian experience. Look for riding instructor qualifications – from such bodies as the British Horse Society, the Association of British Riding Schools, the Trekking and Riding Society of Scotland and the Riding for the Disabled Association – or a UK Coaching Certificate. There are also numerous degrees and professional registers, such as Royal Veterinary Society, the Society of Equine Behaviour Consultants, the Society of Master Saddlers, ACPAT (chartered physiotherapists who specialise in treating animals) and the Farriers’ Registration Council. Those organisations publish a wide variety of training manuals, which are an invaluable resource. The Pony Club’s Manual of Horsemanship and Instructor’s Handbook are also very useful reference material. The former is the best introductory ‘jargon buster’ and basic guide to how to act around horses to stay safe – and why. When instructing an expert, be precise and ask exactly the questions you need the answer to. It is well worth spending time on that. An equestrian expert, like any other, will be only too happy to send you reams of fascinating material about their favourite subject, which can be tiresome for the non-horse enthusiast (or judge) to plough through.

The devil is in the detail

When interviewing clients and taking statements, probe for detail, as the tiniest snippet can greatly assist your expert. For example, if the horse kicked, find out if it used a front or hind leg, one hind leg or both? Did the tail swish or not? If the horse knocked someone over, with which bit of its body? If bucking, was the head up or down, still or moving? If moving, was it shaking sideways, up and down or snatched down and in. In welfare-related cases try to stick to quantitative facts rather than emotive qualitative descriptions. The best experts will chat to you on the telephone free of charge to discuss any potential case. They can translate jargon there and then and, if they are not the most appropriately qualified person to assist you, will recommend someone else who is. q

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What issues need to be considered by a forensic veterinary surgeon? By DR MADELEINE FORSYTH BVSc Cert.WEL AP MRCVS Barrister

[VETERINARY SURGEONS instructed to provide reports and give

evidence in respect of animal welfare cases become involved in a number of issues that may not be immediately apparent to the unwary or inexperienced. They are matters that are often raised in forensic veterinary education, but rarely alluded to in other forums. Most animal welfare cases are brought under Section 4 of the Animal Welfare Act 2006, where the principles to be considered are whether the animal suffered, whether that suffering was unnecessary and whether the behaviour of the accused was that of the reasonable animal owner/keeper under all the circumstances. That behaviour should be measured against that of the ordinary man, rather than the opinion of the veterinary surgeon giving evidence of fact for the prosecution – and the perspectives of those two parties are likely to be vastly different. In respect of charges brought under Section 9 of the Act the issue is not suffering, but whether the needs of the animal have been met. That can be a somewhat nebulous allegation, as there are so many different ways in which animals can be kept and cared for. Given the wide range of opinion as to different systems, the charge can be difficult to prove, unless there is a near certainty that the absence or inadequacy of meeting the ‘need’ will lead to suffering in the immediate future. It is significant that during the metamorphosis of the Act the RSPCA gave an undertaking that they would not proceed to litigation on the basis of a Section 9 offence alone, but only when there was also evidence of a cruelty offence under Section 4.

Suffering

While I appreciate that it is for the court to determine ‘suffering’, it may assist if I explain that, from the forensic veterinary understanding, there must be objective changes in the animal that show it to be at a disadvantage before it can be said to ‘suffer’ in an objective, scientific sense. If any of the ‘five freedoms’ of animal welfare are not met there is potential for suffering to occur. Those five freedoms can be summarised as: • The freedom to eat and drink • The freedom to be protected from the environment • The freedom from pain and disease • The freedom from anxiety and fear • The freedom to act in a natural manner for the species Suffering must be interpreted by someone familiar with the species and able to judge its significance. If, for instance, there was no water in a bucket in a stable, it might mean that a horse was very thirsty, or dehydrated. It could also mean that it had just drunk the bucket dry, or that it was about to be led to a trough. If on the other hand the animal in question was a hamster, for example – a species with a reduced need for water – provision of water 24/7 might not be necessary. The extent of the ‘suffering’ should also be considered – to distinguish between, for instance, the suffering caused by a pin prick compared with the more obvious suffering caused by an amputated finger. Having established that some suffering may exist and that it is significant, as opposed to insignificant, then the effect on the animal must be gauged. A forensic veterinary surgeon should seek to demonstrate that to the court by ascertaining whether there has been a change in: • Morphology – does it look too thin or too fat; have a broken leg? • Pathology – changes seen on blood tests or at post mortem • Behaviour – is it unusually quiet, anxious, aggressive?

If there is a measurable change in an animal that confirms it being affected to its disadvantage, then in objective clinical terms this could be said to amount to suffering as we understand it for the purposes of a criminal offence and the court can move on to decide whether the suffering was necessary or not.

A meeting of experts

It is common for the court to order a meeting of veterinary experts to narrow the issues and prepare a document of agreed and nonagreed facts. In practice that often means a meeting of the chief prosecution witness – a veterinary surgeon who was involved in the examination and seizure of the case animal and is therefore not free of the ‘exigencies of litigation’, as Mr Justice Cresswell put it – and the independent expert veterinary witness instructed by the defence, who has considered both the prosecution and defence cases to assist the court. Inevitably a professional conflict arises and free and frank discourse between those particular parties is difficult – and unlikely to come to a helpful solution. q • Dr Madeleine Forsyth is a veterinary surgeon with over 40 years experience in veterinary practice, a veterinary expert witness and also a non-practising barrister. She began her career as a schoolgirl assisting world famous vet and author James Herriot in his North Yorkshire practice.

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How many routes to resolution? By CHRIS MAKIN FCA FCMI FAE QDR MCIArb Chartered Accountant, Accredited Civil Mediator and Accredited Expert Determiner

â&#x20AC;&#x2DC;Let me count the waysâ&#x20AC;Śâ&#x20AC;&#x2122; Elizabeth Barratt Browning, Sonnet 43 >YES, THERE ARE MANY WAYS of resolving

disputes, and it falls to the skilled legal practitioner to choose the right one. It is no longer the case that going to court is the only way. In criminal cases, court is the almost inevitable route. But letâ&#x20AC;&#x2122;s not be so hasty. If, for example, fraud is detected, going to the police is not necessarily the right choice to make. ,I D EXVLQHVV KDV VXIIHUHG ÂżQDQFLDO IUDXG â&#x20AC;&#x201C; say, an accountant who has stolen cash, IDOVLÂżHG UHFRUGV UXQ D VFDP ZLWK VXSSOLHUV Âą the size of the fraud can often have brought the enterprise to the brink of insolvency. The urgent need then is to recover the money â&#x20AC;&#x201C; fast. Reporting matters to the police can result in them seizing as evidence the very records which are needed to pursue the offender. You need a skilled forensic accountant who can quantify the loss and help confront the offender for restitution â&#x20AC;&#x201C; without destroying the evidence needed if a formal claim must be made, or if a criminal ,I D EXVLQHVV VXIIHUV ÂżQDQFLDO IUDXG WKH VL]H RI ZKLFK FDQ RIWHQ KDYH EURXJKW WKH prosecution becomes necessary. enterprise to the brink of insolvency, the urgent need is then to recover the money â&#x20AC;&#x201C; fast. In big ticket family cases, the FDR is Mediation is good in family matters. Specially trained family commonplace. A senior family judge hears PHGLDWRUV KHDU ERWK VLGHV LQ D VHULHV RI PHHWLQJV DQG KHOS ÂżQG the evidence in submissions, makes a finding, and encourages the common ground. In most cases the parties are supposed to attend a parties to go away and agree matters. If that fails, the whole case Mediation Information and Assessment Meeting (MIAM) before they is heard before a different judge for a binding decision. can have a hearing, though adoption of this is patchy in some areas. Members of Resolution are keen on collaborative law, where Whilst I am a civil and commercial mediator, not a family mediator, both spouses and their solicitors do their best to agree matters in , KDYH VXFFHVVIXOO\ PHGLDWHG WKH ÂżQDQFLDO DVSHFWV RI GLYRUFH )RU meetings. Since the lawyers must stand down if discussions fail, example, two married GPs had a â&#x20AC;&#x2DC;job shareâ&#x20AC;&#x2122; sole general practice, and since the parties must instruct different lawyers at additional but one of them was also a part-time occupational health consultant. cost, everyone is committed to reaching a settlement. There were no children, and there had been no violence. Once it was agreed that one would take the GP practice and the other build up their consultancy, and we reached agreement on house, savings and pensions, there was very little left to agree later. In civil litigation, the choice is wide. There is of course always the option of talking to the other side, and many personal injury practitioners are fond of the joint settlement meeting. Arbitration is available, and for some cases it is ideal. One can have a fair hearing, before an arbitrator of the right profession to understand the issues, and with a legally binding decision â&#x20AC;&#x201C; and for big cases it is far quicker than waiting for a High Court hearing. But arbitration can be so formalised that it is just as lengthy as court, and you have to pay Mediation is good in family matters the arbitrator rather more than the court fee.

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I had an interesting experience when a small firm of solicitors had a dispute about how much the senior partner should receive on his retirement. It had gone to arbitration, where a very senior arbitrator had charged more than the amount in dispute! And, worse, he had made an award only on principles, and the quantum still had to be decided. So I was appointed to do an expert determination and put some numbers onto the principles. This I did, at a far more modest fee â&#x20AC;&#x201C; but it still proved an expensive exercise for these poor solicitors. Expert Determination (ED) should not be overlooked. I was one of the first five to be accredited an expert determiner at the Academy of Experts, where I now examine candidates. You can regard ED as a cheaper and faster form of arbitration: the expert is chosen for his appropriate experience, and the process is done largely on paper, though formal hearings can be held if necessary. I am on the presidentâ&#x20AC;&#x2122;s panel of EDs at the ICAEW, and am often brought in to resolve share sale/purchase disputes, but I have done other kinds, such as the partnership case above. Then we have Early Neutral Evaluation, where, similar to ED, I receive submissions from the parties and their advisers, and then issue a non-binding determination. If they canâ&#x20AC;&#x2122;t agree matters after that, I can conduct a mediation to agree on what is left. There are many ways to skin a cat! Which brings me to mediation. I am getting much busier as a mediator, though still very busy in my â&#x20AC;&#x2DC;day jobâ&#x20AC;&#x2122; as a forensic accountant and expert witness. So there are still many people who follow the conventional route; but with costs budgets, costs penalties, and the courts cluttered up with litigants in person, that is changing. And the litigator has a constant duty to consider ADR. Let me close by telling you about a wonderful experience I had recently. In a big dispute over professional negligence, the parties wanted two mediators: a lawyer and an accountant. The lawyer they chose was Sir Alan Ward, recently retired as a Court of Appeal

judge, now a mediator and chairman of the Civil Mediation Council. But, although he had always been very supportive of mediation in his judgments, he had not yet done a mediation. The accountant mediator they chose was yours truly. But I have done over a hundred mediations, whereas this was Sir Alanâ&#x20AC;&#x2122;s first time. And, do you know, he was wonderful! So wise, so well-informed of the procedure and the case, and with such a soothing bedside manner. And never once did he revert to making judgments. The whole experience was a delight, and I in turn learned so much from this â&#x20AC;&#x2DC;beginnerâ&#x20AC;&#x2122;! So to conclude, the choice of methods to settle disputes is wide, and I am always happy to talk about them to anyone who will listen! T

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

H[SHULHQFH ÂżUVWO\ 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 ÂżUP +H DFWV IUHTXHQWO\ for claimants/applicants, defendants/respondents and as a single joint expert and has given expert evidence over 100 times. )RU PDQ\ \HDUV &KULV ZDV D FRQWULEXWRU WR WKH .HPS .HPS publication The Quantum of Damages +LV FKDSWHU RQ /RVV RI 3URÂżWV IRU WKH 6HOI (PSOR\HG )DPLO\ &RPSDQ\ 'LUHFWRU LV DQ DGPLUDEOH VXPPDU\ RI KRZ EXVLQHVVHV ZRUN DQG LV RI EHQHÂżW WR ODZ\HUV LQ PDQ\ ÂżHOGV not just personal injury. Although it is now out of print, Chris is happy to provide it free on request. Chris offers an initial review of any case, without obligation to instruct him. If the matter 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 spent on initial review is included in the fee quoted. Only when terms are 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 cases â&#x20AC;&#x201C; including some where the parties even refused to sit in the same room at the start â&#x20AC;&#x201C; yet his personal settlement rate is running at about 80%. Chris Makin might just be the mediator who could help you and your FOLHQWV WR UHVROYH HYHQ WKH PRVW GLIÂżFXOW OLWLJDWLRQ FDVHV As a mediator he has dealt with many types of disputes, including business purchase and sale, partnerships, contractual failings and professional negligence â&#x20AC;&#x201C; all the kinds of dispute you would expect an accountant to be able to help with. But he has also mediated in disputes LQ WKH ÂżHOGV 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 GLIÂżFXOW DUHD T

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Arbitration or mediation:

ZKLFK LV D EHWWHU ¿W IRU \RXU GLVSXWH" DAVID BUNKER, Chartered Accountant, Arbitrator and Mediator, highlights the salient differences between the two processes

>I HAVE BEEN involved in resolving a great many commercial

disputes by means of either arbitration or mediation. I have a great UHVSHFW IRU ERWK SURFHVVHV EXW ¿QG LW LQHVFDSDEOH WKDW VRPH GLVSXWHV JHW settled by arbitration when mediation would have been more appropriate – and vice versa. 7KH ¿UVW GLIIHUHQFH LV WKH DYDLODELOLW\ RI WKH SURFHVV 0HGLDWLRQ LV DYDLODEOH as an option before proceeding to trial for almost any commercial dispute. Indeed, it is positively encouraged by the court, which is likely to penalise a VXFFHVVIXO OLWLJDQW ZKR KDV GHFOLQHG WR ¿UVW WU\ PHGLDWLRQ E\ UHVWULFWLQJ WKH costs awarded. By contrast, an arbitration can only be entered into if there is a contractual agreement that arbitration can be invoked in the event of a dispute, which pre-dates the dispute that has now arisen. Both methods of dispute resolution are often presented as being relatively informal. That aspect has, perhaps, been overstated. Both methods do offer a route for resolution of the matter in question without the formalities, costs and timescale of the court, but they have built up their own procedures. Both can proceed as fast as both parties are able, at a venue mutually agreed – and to that extent there are obvious cost savings. In my experience a mediation can be arranged more quickly than an arbitration hearing. I have never been involved in an arbitration hearing where the parties did not opt for a quasi-judicial setting, with counsel representing each side and court formalities observed.

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The crucial distinction between the two procedures is that an arbitration results in a decision which is binding and a mediation does not. At the end of a mediation the parties can either come to an agreement or accept that they will meet each other again in court. That is simply not the case with an arbitration: the arbitrator will provide a decision which is YHU\ GLI¿FXOW WR RYHUWXUQ 7KLV FUXFLDO GLIIHUHQFH KDV D VLJQL¿FDQW HIIHFW RQ WKH DSSURDFK DQG demeanour of both parties. In my experience some parties enter into a mediation simply to test out the resolve of the other party. That cannot be the FDVH ZLWK DUELWUDWLRQ 7KH DUELWUDWLRQ KHDULQJ LV WKH ¿UVW DQG ¿QDO RSSRUWXQLW\ to present both cases before an independent third party. Both have much to recommend them for the resolution of commercial disputes, compared with the conventional court process. It has been my observation that arbitration is more appropriate for a fundamental dispute over an issue of principle or question of truth. Those kinds of disputes are XQOLNHO\ WR EH UHVROYHG ZLWKRXW VHHNLQJ WKH ¿QDO GHFLVLRQ RI DQ H[SHULHQFHG independent person and are rarely resolved satisfactorily at a mediation. However, if it is fundamentally a commercial dispute where there is an element of responsibility to be borne by both sides, and the dispute FHQWUHV URXQG WKH GLYLVLRQ RI WKH ¿QDQFLDO FRQVHTXHQFHV RI D IDLOXUH RI WKDW commercial agreement, then mediation is a more appropriate method to bring the dispute to a negotiated conclusion, so that both parties can put the dispute behind them. T

Lords forensic science inquiry prepares to take oral evidence

[IN JULY the House of Lords Science and Technology Committee

launched an inquiry into forensic science. Having called for written evidence to be submitted by 14 September, the committee will begin to hear oral evidence on 9 October. The inquiry will look at the contribution forensic science makes to the delivery of justice in the UK and its strengths and weaknesses in doing so. It will also explore the understanding and use of forensic evidence in the criminal justice system and how this evidence can be used effectively and robustly throughout the process. It will cover four broad areas: • The forensic science research landscape • The use of forensic science in the criminal justice system • Standards and regulation • Digital forensics The chair of the committee, Lord Patel, commented: “Recent reports have warned that police are increasingly relying on unregulated experts to examine samples from suspects and crime scenes. Given the important role forensic science can play in convicting or exonerating defendants, the committee wants to make sure that forensic evidence is produced to a consistent scientific standard. “We also want to examine the way in which forensic evidence is understood throughout criminal justice process, and whether the government has considered the need to plan for the predicted increase in the amount of digital forensic evidence.” q

Consultation closes on CoP for forensic gait analysis [ ON 1 OCTOBER a consultation closed on draft proposals for a

Code of Practice regarding forensic gait analysis. The consultation was held by the Forensic Science Regulator. Forensic gait analysis is the science of determining a person’s identity from analysing the way they walk – their gait. The analysis is often carried out using either CCTV or other surveillance footage. According to a primer for the courts – produced by the Royal Society and the Royal Society of Edinburgh – the first time gait analysis was allowed in evidence in an English court was in 2000, during the trial of an alleged gang of armed jewel robbers. A suspect was convicted after an expert podiatrist stated that his distinct, ‘bandy-legged’ walk – derived from CCTV analysis – could only occur in 5% of the population. The primer sees the use of such evidence as likely to increase with the ever-increasing presence of CCTV in both private and public spaces. Forensic gait analysis can be used in two ways. It can either help to place a suspect at a scene, by pointing to the similarity of the subject’s gait to that of the suspect, or it can help to exclude a suspect by highlighting differences. The draft Code of Practice which was the subject of the consultation was produced by the Chartered Society of Forensic Sciences’ Forensic Gait Analysis Working Group in collaboration with the College of Podiatry. q

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Welcome to our A to Z guide of the websites of some of the Expert Witness field’s leading players. If you are one of our many online readers simply click on any of the web addresses listed below and you will be automatically directed to that particular website. To get your website listed on this page just give us a call on 0161 710 3880 or email ian@dmmonline.co.uk Mr Jeremy P Crew MA MD BChir FRCS Translations and Interpreting for the Legal Profession since 1997. Specialists in Personal Injury and Clinical Negligence.

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

www.abc-translations.co.uk

www.oxfordurology.co.uk

Mr Antony M. Visocchi

Dr Joshua Adedokun

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

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

www.dentalexpertwitness.co.uk

www.expertpainreports.co.uk

Mr Chris Makin

Dr Lars Davidsson MRCPsych MEWI

• Chartered Accountant • Accredited Civil Mediator • Accredited Expert Determiner

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

www.chrismakin.co.uk

www.angloeuropeanclinic.co.uk

David Berry PhD FRC Path MFSSoc MRSC

Mr Marcus Ornstein

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

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.toxicologyservices.co.uk

www.marcusornstein.co.uk

Emma Ferriman Ltd

Mr. Michael Hodge

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

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

www.emmaferriman.co.uk

www.consultantoralandmaxillofacialsurgeon.co.uk

Expert in Mind

Dr Nigel Kellow MB BS FRCA MBA

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

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

www.expertinmind.co.uk

www.kellow.com

FHDI - Kathryn Thorndycraft

Dr Thomas C M Carnwath

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

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

www.forensichandwriting.co.uk

www.tomcarnwath.co.uk

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Legal services experts can lighten the load [ SERVING LEGAL PAPERS can be a complex and often

unwanted experience for a legal practice, which is where Eclipse Legal Services comes in. Process serving is one of a range of services on offer from the firm, which can also carry out background checks, RTA investigation and all kinds of private investigations, as well as surveillance and tracing.

Process serving

Working across the UK and worldwide, the Eclipse team of experienced legal service professionals and private detectives ensures documents are delivered correctly and in a timely fashion. They offer excellent reporting, quick delivery, experienced investigators and competitive pricing – with discounts for volume work. Because they work with a wide range of clients in a variety of sectors, they serve an extensive range of documents. Their client list includes private customers, businesses, insurance firms, law firms, solicitors and local authorities. They can offer a full service solution, including collecting the documents to be served from a lawyer’s office or from the applicable law courts. They can also prepare all certificates, statements and Affidavits of Service at their head office in Manchester, ensuring conformity with the Civil Procedure Rules and uniformity.

Background checks

Background checks are a vital part of any successful debt recovery case. They provide further evidence to enable clients to make an informed decision on how to proceed with a debt recovery instruction. Such reports can be used as evidence in a legal process to

confirm a debtor is residing at an address or denies knowledge of the debt in question. That allows the client to have accurate information about the debtor before commencing expensive court proceedings.

Private investigation

All of the company’s investigators are fully trained in key areas, and come from specialist backgrounds such as the military and the police service. That allows Eclipse to assign a private investigator who is most suited to the task, meaning they can confidently claim that ‘you won’t get better results anywhere else’. Results can be provided across various platforms to make any decision-making from the information as easy as possible. Depending on the type of investigation, Eclipse can provide written reports, high-quality DVD footage, photographic evidence or other types of applicable relevant documentation.

Tracing service

Finding an absconded debtor or missing person can be a complex and time consuming task. That is why, as professional private investigators, Eclipse offers a tracing service for all kinds of missing, lost or untraceable people. They are trusted by business across the UK to trace customers, clients or interested parties and work quickly and efficiently using specialist techniques – and always in accordance with the Data Protection Act 1998. Whether a client is trying to locate missing friends and family members, debtors or beneficiaries, they boast a high success rate. People you may have thought to be completely untraceable can be found with the help of Eclipse’s specialist tracing team.

Surveillance

Eclipse Legal Services offers professional and discreet surveillance work across the UK and worldwide. Their expert team of male and female surveillance operatives have been hired from a number of backgrounds, including the armed forces, police and the intelligence services. They have experience in the field to guarantee a professional and satisfactory service, no matter what the job. They have been professionally trained and use the most modern surveillance equipment to get the evidence needed. A particular specialist technique employed is GPS vehicle tracking, which can form an integral part of a larger investigation or be a standalone process.

RTA investigation

Road traffic accidents require an expert investigator and specialist equipment to ensure all the evidence is collected in the correct manner. Eclipse Legal Services have a specialist team of RTA investigators who are trusted to collect evidence on behalf of many companies across the UK. They regularly assist legal professionals to gather evidence for claimants to help with the presentation of their cases. They also work with large insurance companies and law firms all over the world to both support and invalidate claims. q www.yourexpertwitness.co.uk

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The burqa question: what are the facts? By DR BASHIR QURESHI FRCGP FRCPCH Hon FFSRH-RCOG AFOM-RCP Hon MAPHA-USA Hon FRSPH • Expert Witness in Cultural, Religious & Ethnic issues in Litigation • Expert Witness in GP Clinical Negligence • Author, Transcultural Medicine: Dealing with Patients from Different • Cultures, Religions and Ethnicities.

[THE INVENTION, function and future of the burqa – a dress

which covers the whole body except the eyes of a devoted Muslim woman – has become more relevant to judges, juries and lawyers, as their own activities and clients have become increasingly multicultural, multireligious and multiethnic. Moreover, the Human Rights Act and the United Nations Declaration requires the freedom of religious or secular belief for everyone. Traditionally, religions have protected women for a number of reasons: physical, psychological and social. Men in society have traditionally had a duty of care to make sure that all women – single or married – are safe from potential robbers. While in many religions women are advised to cover their hair and breasts, Islam went further, by requiring them to also keep the face hidden from male strangers. As an impartial secular expert witness I respect all religions equally, so as to fairly assist the courts.

Islam and the burqa

Islam is the second largest religion in the world after Christianity. Readers will be aware already that Judaism, then Christianity, and finally Islam originated in the Middle East: in and around the Holy Land, centred on Jerusalem. Islam made its centre in Mecca and Medina in Saudi Arabia. Purdah, or the veil, to hide adult women from male strangers, has three forms in Islam: • Hijab – covers the head with a dupatta, or headscarf • Niqab – covers the head and the face as it has make-up • Burqa – covers the whole body. There is a small netted part covering • the eyes, to be able to see the way and the people around. The reasons religious Muslim women have for wearing the burqa are: • To protect themselves from male strangers – possibly even robbers or • kidnappers – in an unsafe locality. Police stations and courts are • exempt, if a relative is present. • Courtship of singles is strongly forbidden in Islam. Religious Muslims • believe that the less women know of others, the more likely they • are to stick to one husband and start a happy family. • Jewellery is worn by Muslim women on the nose, forehead, ears, neck, • wrists and ankles. That reason for hiding the face is not widely known • to non-Muslims. In areas of the world where there is religious tension or • riots, saving money in the form of gold and silver jewellery can be • essential for an extended family to survive. Access to a bank may not • be possible – it may not even exist locally – and money in a bank can • be confiscated by colonial rulers or invading forces. • Protection from bad weather, especially in the tropics. A burqa is akin to • a light overcoat: it provides enough space for air to be trapped in, to • protect the body from the intense heat of the sun or cold weather. • Some women carry presents for relatives, at religious ceremonies or • weddings, and these can be hidden from sight.

What do other religions and cultures do?

• Christianity – Catholic nuns’ habits cover their whole bodies except • their faces. It is possible that the concept of a burqa originated from • that ritual, as many Christians became Muslims. Eye contact is • required in European countries, but not in Eastern countries. • Judaism – Jewish women use a hat, headscarf or wig to cover the hair. • Hinduism, Buddhism and Sikhism – women use a headscarf, or • dupatta, to cover the hair. Liberals, secularists, agnostics and atheists usually do not use any veil.

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Human rights and the laws of states

The United Nations, European Union and democracies worldwide vary in their responses to the wearing of a veil or burqa. Two countries – Austria and France – enforce a total ban, while a partial ban is enforced in Belgium, Netherlands, Spain, Switzerland, Italy, Latvia, Bulgaria, Cameron, Chad, Congo and Niger. A partial ban, in courts and police stations, is in place in only one Islamic, semi-European, country: Turkey. It should be borne in mind that Islam requires every Muslim to obey the law of their country. Finally, I plead that everyone should respect the human right of individuals to wear their national or religious dress: let everyone be happy. Costumes vary worldwide, and although hidden prejudice cannot be eliminated, it would be wise to avoid using abusive or ridiculing language against the burqa, or any other religious dress, as there is always a reaction to every action. Love begets love and hatred always brings more hatred, while mutual respect avoids conflict and wars. Fortunately, mutual respect is a common practice in the UK; as an example, all places of worship avoid broadcasting their prayer calls on loudspeakers in multireligious areas. Britain leads the world in many ways, including religious harmony. q

AI will change, not replace, human interpreting, says futurist expert [IN THE LAST ISSUE we reported on the reaction of the Institute of Translation and Interpreting to Lord Burnett’s speech prophesying that the work of the court interpreter will be taken over by machines ‘within a few years’. The debate on artificial intelligence (AI) in interpreting and translating has been taken on a step by futurist Christopher Barnatt. Writing in The Linguist – the house journal of the Chartered Institute of Linguists – Professor Barnatt sees the influence of AI in all areas of interpreting. Indeed, he cites many instances where machine interpreting is already the norm and sees its reach as extending. He is not entirely a doom-monger for human translators and interpreters and writes: “This does not mean that all or even most human translators will be made redundant. Even today, many translators use AI tools to assist with translation activities, and – as in many other occupations – the creation of human-AI teams is going to be increasingly common in the 2020s.”

He quotes Ken Watson, the chief technology officer of e-learning specialist Lionbridge, which is employing Amazon Translate. Said Watson: “Human translators armed with machine translation help companies localize more content, faster, more affordably and into more languages. Based on our experience, pairing Amazon Translate with a human editor, we believe we can produce cost efficiencies of up to 20%.” Translators may not become extinct, says Professor Barnatt, but they will have to adapt. “Almost certainly, the rise of AI will require human translators to redefine their business in order to compete with or capitalise on the new technology. “In many instances the best option will be to integrate human and machine translation, as Lionbridge have signalled, and to operate as a value-added intermediary. For example, a human translator may use cloud AI services to provide real-time translation of a client’s web content, but with the added benefit of a guaranteed human check and edit within 24 hours.” q

Translators’ register to join that of interpreters [NRPSI LTD – the not-for-profit

organisation that owns and manages the UK’s National Register of Public Service Interpreters (NRPSI) – is to launch a new register of public service translators next year. The move follows a consultation about the need for a register of public service translators with a variety of stakeholders, including NRPSI registrants with a translation qualification and the public services. It highlighted not only that the NRPSI register of interpreters is being used to source translators, but also that there are currently no widely held standards or a code of practice underpinning the quality of public sector translation. NRPSI Ltd executive director Stephen Bishop explained: “The National Register of Public Service Interpreters, which is run by NRPSI Ltd, neither accredits translation skills specifically nor upholds professional standards expressly relating

to translation, other than where translation skills are required as part of an interpreting assignment. “Despite that fact, our research shows that the NRPSI register is being used to find translators, indicating the desire of those seeking translators to work with registered language professionals. Furthermore, it is also evident from a separate NRPSI study of language service users that 25% of them have experienced poor professional conduct from translators in the past two years. These findings have led the NRPSI Ltd board to conclude that there is a need for a register of public service translators that is equivalent to the NRPSI register of interpreters.” NRPSI plans to launch the new register of translators during next year and to run it along similar lines to the register of interpreters. It will be an open-access,

online register funded by registration fees, ensuring that NRPSI Ltd can remain independent and free from pressure groups. The new register will be called the National Register of Public Service Translators (NRPST). Those who wish to become a registered translator will need to meet the standards set by NRPST for professional practice and demonstrate their commitment to the highest professional standards. There will be requirements for qualifications, experience, continuing professional development, security vetting and entitlement to work. The two registers will be separate, however there will be links between them to make it easy to identify those language professionals who have met all the relevant standards to be registered in both disciplines. They will both be underpinned by the same code of conduct and disciplinary process for complaints. q

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MEDICAL NOTES [DOCTORS HAVE BEEN FEELING under siege in recent months. A survey by the BMA has found many doctors

see themselves as working in unsafe environments, without the facilities or back-up needed to perform their task adequately, and with a culture of blame only too ready to take them to task. The problems are exacerbated by a finding that doctors from black and Asian minority communities were more likely to be brought before the GMC, received harsher penalties and were less likely to be promoted. Many reported unconscious racism. Those two connected issues were to the fore in the storm that surrounded the case of Dr Hadiza Bawa-Garba. Such was the depth of feeling that two reviews have been taking place into the prosecution of doctors. In the case of Dr Bawa-Garba common sense seems to have prevailed and the lifelong ban has been lifted. • Instances of doctors being prosecuted for actions taken while at work, coupled with the recent increases in negligence claims, have led to a greater need on the part of medics for legal representation, and expert opinion, themselves. There are a number of bodies who act on behalf of doctors and an area that has come more to the fore recently is that of dispute resolution. Having doctors in court unnecessarily leads to wasted time in the courts and more pressure on our hospitals. • There are occasions when having doctors in court is a positive factor. That is when psychologists are able to advise the judiciary on the appropriateness of Community Sentence Treatment Requirements for offenders with mental health, drug or alcohol problems. A pilot of the use of such measures, with psychologists in attendance in court, has proved a success. • Many cases where patient harm has arisen where it could and should have been avoided can be attributed to a simple failure of communication or lack of information – indeed, in the Bawa-Garba case the fact that the hospital’s computer system was down at the time is cited as a factor in the tragic death of Jack Adcock. Now, advances in artificial intelligence (AI) are promising to add even more to the ability of doctors to diagnose disease and even treat some conditions. In the case of eye conditions, advances in AI have enabled researchers to ‘teach’ a system to make an accurate diagnosis in 94% of cases – comparing favourably with the top human experts. With such advances must come a greater ability to reduce risk to patients and make such mistakes a thing of the past. • In areas where technology has not yet come to the fore, human experience is coupled with established guidelines and clinical pathways to ensure accuracy of diagnosis. In some instances, however, the diagnosis is a false one and the result can be catastrophic. A leading expert in the treatment of deep vein thrombosis describes some instances where DVT has been diagnosed when the real culprits were other conditions. • One of the dangers of DVT is that of it travelling to the lung and causing a pulmonary embolism, which can be fatal. Embolism can also be the result of fat being injected into a vein during so-called Brazilian butt lift – a cosmetic procedure attracting attention. The British Association of Aesthetic Plastic Surgeons has issued a warning of the potentially life-threatening consequences of the procedure, reiterating its warnings of the dangers of travelling abroad for surgery. • Maxillofacial surgeons have also warned of the danger to life of another, seemingly innocent, popular body modification – tongue splitting. Together with oral piercing, the procedure poses risks of infection that piercing other parts of the body do not. You have been warned. q

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GMC responds to CQC prosecutes Bawa-Garba decision illegal care provider [COMMENTING ON THE decision to re-instate Dr Hadiza Bawa-Garba to the medical register, Charlie Massey, chief executive of the General Medical Council, said: “We fully accept the Court of Appeal’s judgment. This was a case of the tragic death of a child, and the consequent criminal conviction of a doctor. “It was important to clarify the different roles of criminal courts and disciplinary tribunals in cases of gross negligence manslaughter, and we will carefully examine the court’s decision to see what lessons can be learnt. “As the independent regulator responsible for protecting patient safety, we are frequently called upon to take difficult decisions; and we do not take that role lightly. We are sorry for the anguish and uncertainty these proceedings have had on Jack’s family, Dr Bawa-Garba and the wider profession. This was a complex and unusual case; while the decisions we took were in good faith, we know that investigations and hearings are difficult for everyone involved. “Although gross negligence manslaughter cases in medicine are extremely rare, this case has exposed a raft of concerns, particularly around the role of criminal law in medicine, which is why we have commissioned an independent review to look at how it is applied in situations where the risk of death is a constant, and in the context of systemic pressure. “It has also been a lightning rod for the profession, highlighting issues that have gone unaddressed for far too long. While the GMC is not responsible for decisions to prosecute gross negligence manslaughter cases, we have reflected on what we can do to address the concerns we’ve heard about this case. Doctors have rightly challenged us to speak out more forcefully to support those practising in pressured environments, and that is what we are increasing our efforts to do.” q

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[A COMPANY DIRECTOR who illegally provided domiciliary

care services from three north London addresses has been fined more than £3,500 at Highbury Corner Magistrates’ Court. The company was not registered with the Care Quality Commission as required by law. It is an offence under the Health and Social Care Act 2008 to carry out a regulated activity without being registered with the CQC. Mr Yousef Jowaheer appeared in court on 3 August and pleaded guilty to two offences as director of Cape HealthCare and Cape HomeCare. He was sentenced on 20 September and ordered to pay £1,200 for each offence, £170 victim surcharge and £966.40 costs, making a total of £3,536.40. He was disqualified as a company director for five years. Mr Jowaheer ran care services from different addresses in north London – Broadhurst Gardens, Camden; Talbot House, Harrow; and Canada House Business Centre, Ruislip – over a period of years. Andrea Sutcliffe, CQC’s chief inspector of adult social care said: “It has taken over two years for Mr Jowaheer to be located and brought to justice. I would like to thank the CQC team that tracked down and helped to prosecute Mr Jowaheer. CQC carries out a vital role in registering and regulating services, so that people can be protected and have good quality care. The conclusion of this case demonstrates that we will hold providers to account, including prosecution when that is warranted.” The company is no longer providing care services. q

Blame culture and safety fears top doctorsâ&#x20AC;&#x2122; list of concerns >DOCTORS ARE INCREASINGLY expected to provide patient care

LQ XQVDIH HQYLURQPHQWV ZKHUH D SHUVLVWHQW FXOWXUH RI EODPH VWLĂ&#x20AC;HV learning and discourages innovation. That is the conclusion drawn from D %0$ VXUYH\ SDUW RI DQ DPELWLRXV SURMHFW DLPLQJ WR ÂżQG VROXWLRQV WR the challenges faced by the NHS. The project â&#x20AC;&#x201C; Caring, Supportive, Collaborative â&#x20AC;&#x201C; has seen almost 8,000 doctors provide accounts of their working lives across the NHS. It will go on to look at how working life can be improved. BMA council chair Chaand Nagpaul said: â&#x20AC;&#x153;It is vital that the government and policymakers heed the views of all doctors who provide care at the coalface; they are in the best place to know the problems the NHS faces on a daily, hourly basis. â&#x20AC;&#x153;They know the scale of impoverishment in the NHS is staggering and they are working in a culture which has improved little since the publication of the Francis and Berwick reports following the tragedies in 0LG 6WDIIRUGVKLUH ÂżYH \HDUV DJR Â´

care to patients across the country. Yet despite their commitment theyâ&#x20AC;&#x2122;re more likely to face referral to the GMC, are more likely to have their cases investigated and are more likely to face harsh sanctions following an investigation. Only 7% of very senior managers are from BAME backgrounds. â&#x20AC;&#x153;BAME staff in the NHS workforce as a whole are more likely to experience bullying, harassment or abuse from other staff. Differential achievement in exams and poorer career progression are other worrying factors; and with independent research showing that this is not related to any lack of ability. In the 21st century, that is not acceptable.â&#x20AC;? T

Poor communication

The stark survey reveals the damaging effect of asking doctors to provide care without enough funding, staff, beds or equipment to meet the needs of patients. The results also suggest that poor lines of communication and organisational divisions between general practice and hospitals are undermining patient care. The accounts from doctors also reveal that a lack of IT support is holding back efforts to encourage collaboration and greater innovation in health services. Dr Nagpaul continued: â&#x20AC;&#x153;Doctors experience the challenges of WU\LQJ WR SURYLGH VDIH SDWLHQW FDUH ZKHQ WKHUH LV SRRU VWDIÂżQJ JDSV in rotas and lack of adequate facilities, and where a persistent FXOWXUH RI EODPH VWLĂ&#x20AC;HV OHDUQLQJ DQG LPSURYHPHQW 7KH %0$ÂśV Caring, Supportive, Collaborative SURMHFW DLPV WR XQGHUVWDQG DQG ÂżQG solutions to these challenges.â&#x20AC;? 7KH VXUYH\ DOVR UHYHDOV D VLJQLÂżFDQW QXPEHU RI GRFWRUV DUH IHDUIXO RI making a medical error and that the level of fear has increased over the SDVW ÂżYH \HDUV 1LQH RXW RI GRFWRUV VD\ RQH RI WKH PDLQ UHDVRQV IRU making errors is pressure and lack of capacity in the workplace.

Lack of inclusivity

As well as a culture of fear and blame, the survey also showed that black and Asian minority ethnic (BAME) doctors remain disadvantaged by the NHS. Only half of BAME doctors feel respected or culturally included in their place of work. They talked of experiencing unconscious racism in everything from job progression to training and patient interaction. Said Dr Nagpaul: â&#x20AC;&#x2DC;BAME doctors make up more than a third of the medical workforce and play a vital role â&#x20AC;&#x201C; day in day out â&#x20AC;&#x201C; delivering www.yourexpertwitness.co.uk

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Failed trials: scientists discover why [SCIENTISTS HAVE DISCOVERED a vicious feedback loop

underlying brain degeneration in Alzheimer’s disease, which may explain why so many drug trials have failed. The study, carried out by King’s College London researchers, also identified a clinically-approved drug which breaks the vicious cycle and protects against memory loss in animal models of Alzheimer’s. Overproduction of the protein beta-amyloid is strongly linked to development of Alzheimer’s disease, but many drugs targeting betaamyloid have failed in clinical trials. Beta-amyloid attacks and destroys synapses – the connections between nerve cells in the brain – resulting in memory problems, dementia and ultimately death. In the new study, published in Translational Psychiatry, researchers found that when beta-amyloid destroys a synapse, the nerve cells make more beta-amyloid driving yet more synapses to be destroyed. Dr Richard Killick, senior author of the study, said: “We show that a vicious positive feedback loop exists in which beta-amyloid drives its own production. We think that once this feedback loop gets out of control it is too late for drugs which target beta-amyloid to be effective, and this could explain why so many Alzheimer’s drug trials have failed.” The researchers also found that a protein called Dkk1, which potently stimulates production of beta-amyloid, is central to the positive feedback loop. Previous research by Dr Killick and colleagues identified Dkk1 as a central player in Alzheimer’s; and while Dkk1 is barely detectable in the brains of young adults, its production increases as we age. Instead of targeting beta-amyloid itself, the researchers believe targeting Dkk1 could be a better way to halt the progress of Alzheimer’s disease by disrupting the vicious cycle of beta-amyloid production and synapse loss. q

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Research identifies tests for bleeding after stroke

[PEOPLE WHO SUFFER a stroke caused by bleeding in the

brain could be helped by four simple checks of their brain scans, new research suggests. The checks could help spot people at risk of further bleeding so they can be monitored more closely. The team – led by University of Edinburgh researchers and funded by the Medical Research Council and the British Heart Foundation – say it could help improve outcomes for the millions of people around the world who experience a brain bleed each year. Bleeding in the brain – known as an intracerebral haemorrhage (ICH) – is the most deadly form of stroke. Only one in five patients survives without permanent damage. Of the remainder, half are likely to die within a month and half will be left with a long-term disability. Cases of ICH are diagnosed by brain scans, but until now it has been difficult to predict which patients will continue bleeding. Those who do are expected to have worse outcomes. This new study, published in The Lancet Neurology, analysed data from studies around the world involving more than 5,000 patients. The team identified four factors that helped doctors predict whether patients were likely to experience further bleeding. These include the size of the bleed and whether or not the patient was taking medication – such as aspirin or warfarin – to thin their blood or prevent clotting. Professor Rustam Al-Shahi Salman of the University of Edinburgh’s Centre for Clinical Brain Sciences said: “We have found that four simple measures help doctors to make accurate predictions about the risk of a brain haemorrhage growing. These can be used anywhere in the world. Better prediction can help us identify which patients might benefit from close monitoring and treatment. “We hope that an app could help doctors to do this. The next step is to find an effective treatment to stop the bleeding.” q

Poisons Service report published [ HEALTHCARE PROFESSIONALS in

the UK made more than 696,000 visits, referred to as ‘user sessions’, to the online TOXBASE database of the National Poisons Information Service (NPIS) in the period 2017-18. In addition, they directed nearly 2,000 telephone enquiries to its consultant toxicologists, in particular following cases of exposure to drugs of misuse, to prescription pharmaceuticals or to chemicals – including chemicals in household products. That is according to the NPIS annual report, published in September. Hospital departments are the principal users of the service: 160,000 poisoningrelated hospital presentations occur in the UK each year. Other users are NHS telephone advice services – such as NHS 111 and NHS 24 – and individual professionals in the field, such as ambulance service personnel. A high proportion of all enquiries relate to patients presenting to hospitals following suspected self-inflicted poisonings or the effects of substance misuse. There were also a large number following accidental ingestions of potentially toxic substances,

errors in dosing of medicines or environmental or occupational exposures. In addition to drugs of misuse, the products or agents that were most frequently enquired about were pharmaceuticals and household products. Within the pharmaceutical category, medication to treat pain and inflammation generated the most activity. For example, there were 167,822 online accesses related to paracetamol-containing preparations, while the service received 6,310 paracetamol-related telephone enquiries. According to the government’s Health Protection Report: “The NPIS is uniquely placed to collate poisoning surveillance data and identify national trends; and these are presented in the annual report. Particular topics selected for review in the 2017-18 report are drugs of misuse, pesticides, carbon monoxide, dinitrophenol,

snake bites, oral anticoagulants and poisoning-related deaths.” The NPIS has long encouraged the use of online enquiries as a ‘first point of call’ for information, while its telephone service is intended for more complex cases. To this end, a TOXBASE app offering both NHS and non-NHS subscribers access to TOXBASE was introduced in 2012-13 and upgraded in 2015. That service is available on and offline, at the point of care, via a mobile device. There are currently 12,015 TOXBASE app subscribers who accessed 122,033 app pages during the past year, representing a 50.8% increase from 2016-17. The annual report notes that: “…analysis of the annual number of TOXBASE sessions, TOXBASE app accesses, telephone enquiries and consultant referrals demonstrates the impact of online access to TOXBASE in maintaining telephone enquiry numbers at a level that can be managed within constrained resources.” Integrated within the NPIS is the UK Teratology Information Service, whose functions include the provision of guidance on the best use of medicines for pregnant women, and the follow-up of pregnancy outcome after cases of maternal poisoning. q

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Advice for experts is as relevant now as it was then [ MOST CLINICAL NEGLIGENCE CASES stand or fall on

the quality of expert evidence, and so choosing the correct expert witness is crucial to the legal process. So advised Melanie Rowles, director of claims delivery at the Medical Protection Society, writing in The BMJ back in 2015. The role of the expert witness has not changed. Ms Rowles wrote: “The primary function of professional medical experts is to provide the court with an independent opinion on the clinical issues involved in a case to help the court make a decision on questions falling within that expert’s specialist field. Their role is to assimilate the facts of the case, consider the questions asked of them, and formulate an opinion on the clinical issues based on their experience and qualifications.” There is, however, a bewildering array of specialisms and doctors need to ensure they are not accepting instruction in

a case in which they do not have the appropriate expertise. Those that have strayed beyond their competence have fallen foul of the GMC. Melanie Rowles continued: “When accepting instructions, you must ensure that you are appropriately qualified. For example, if you are reporting on standard of care, the case must concern a doctor working in the same discipline as yourself; otherwise you will not be able to provide a comment on their management of a patient. You should be able to provide an analytical, objective, balanced and accurate opinion.” She further advises: “You should restrict your opinion to specific areas in which you have relevant knowledge and direct expertise. A paediatric orthopaedic surgeon should not accept instructions on adult orthopaedic surgery if he or she has not carried out the procedure criticised for many years.” q

Sometimes it’s the doctor that needs an expert opinion [WHILE IN MOST CASES a medical expert is providing opinion in a

case on behalf of a solicitor or claimant, there are occasions when it is the doctor who is the subject of the legal proceedings – and who may need expert advice and opinion. In such cases the doctor under fire can turn to professional representatives. BMA Law is the body set up by the British Medical Association to provide expert legal advice to the medical community. In 2015 it became licensed as a fully-independent law firm, allowing it to provide a full range of services. In particular, BMA Law offers advice on issues that may help to keep a dispute away from the courts. As its website points out: “Disputes that escalate and reach court are demanding – both on your finances and your time. Mediation

offers a real alternative to court, and encourages parties to come to a mutual agreement.” BMA Law also offers support when things don’t go according to plan in a doctor’s practice. “We can also offer comprehensive support throughout GMC or CQC procedures, such as appeals against withdrawals of licence to practice, representation at fitness to practice hearings, first tier Health Tribunal hearings and High Court appeals. Our highly specialist team of mediators can foster a resolution to disputes that seem destined for court.” In particular, a coroner’s inquest can be daunting particularly for a young doctor. “If you are invited to give evidence to HM Coroner’s officer, our specialist team will assist you with representation and advise you on the preparation for the inquest hearing should you be invited to appear as an interested party to the proceedings.” q

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Capacity in injury litigation: how is the assessment made? by GILES EYRE and DR LINDA MONACI

[JOHN – now 19 years old – is pursuing a personal injury claim against

his employer. He had sustained a severe traumatic brain injury (TBI) and some orthopaedic injuries in an accident at work. Liability was established at trial, but damages are yet to be assessed.

Background history

John has lived in a flat organised by social services since 13 years of age, due to physical abuse by his mother and step-father. He left school at 15. He smoked cannabis regularly and for a period also heroin. He worked for six months on a building site, but left after an argument with his manager. Just before the index event he found further employment on another building site, where the accident occurred. Upon discharge from hospital he returned to his flat, and received little community rehabilitation. At the first neuropsychological assessment, 13 months post-accident, John was found to be not coping well at home: he was eating ready-meals or snacks and he rarely went out. The assessment findings were that the TBI was likely to have caused a mild reduction of processing speed, but otherwise intellectual abilities were intact. John experienced moderate memory problems and the results of tests of executive skills were variable. He reported some issues with controlling his temper, with interpersonal difficulties, fatigue and lack of interest in pursuing goals. He was not dealing with correspondence or returning his solicitor’s calls. An older sister had been appointed his Litigation Friend. The initial neuropsychological assessment found he did not have capacity to litigate, but it was recommended that this should be re-assessed after a period of rehabilitation, as interpersonal problems and mood were likely to have a negative impact on his mental capacity. A second neuropsychological assessment was carried out three years post-accident. John continued to live alone but his girlfriend (they met two years post-accident) and their two-month-old daughter visited him every day. The girlfriend reported that John’s extreme moods made living together impossible. John had not yet been accepted for a return to work and he continued to experience interpersonal difficulties, with limited social interactions. He continued to use cannabis in moderation, but no other drugs or alcohol. Spare cash went on fixed-odds betting machines. His sister continued to support him, but overall he appeared improved in mood and more able to deal with everyday life. She no longer wished to act as Litigation Friend, saying she was not needed; although it appeared she found John’s moods difficult to manage. John lived on state benefits and paid his utility bills, his shopping and household items. He contributed £20 most weeks towards his daughter’s expenses. On formal cognitive testing he continued to show a reduction of processing speed, moderate memory problems and variable results from tests of executive skills. John’s solicitor asked for an expert opinion on whether John had regained capacity, and whether a Litigation Friend was still needed. The solicitor also sought expert opinion on whether John had the mental capacity to handle the substantial damages he was considered likely to receive.

Legal principles

The solicitor’s instructions raised the issues of capacity to conduct litigation and capacity to manage finances. Capacity is to be judged in relation to the decision or activity in question and not globally. According to Section 2 of the Mental Capacity Act 2005 (MCA 2005): “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.” However, Section 1(3) states: “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”. Under Section 3 of MCA 2005 it is provided that: “A person is unable to make a decision for himself if he is unable:

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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 c – decision d – to communicate his decision – whether by talking, using sign language d – or any other means.” Furthermore: “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.” To make that assessment more difficult, Section 4 states that: “…a person is not to be treated as unable to make a decision merely because he makes an unwise decision.” The expert must address: • Whether the person has an impairment of the mind or brain, or there is some sort of disturbance affecting the way their mind or brain works; and whether the impairment or disturbance is temporary or permanent – the ‘diagnostic threshold’. • If so, does that impairment/disturbance mean that the person is unable to make the decision in question at the time it needs to be made – the ‘functional’ test? The expert must then go on to assess the ability to make a decision by answering the following questions: • Does the person have a general understanding of what decision they need to make and why they need to make it? • Does the person have a general understanding of the likely consequences of making, or not making, that decision? • Is the person able to understand, retain, use and weigh up the information relevant to that decision? • Can the person communicate his or her decision? For capacity to litigate, the claimant must have “…first the insight and understanding of the fact that he has a problem in respect of which he needs advice. Secondly, having identified the problem, it will be necessary for him to seek an appropriate adviser and to instruct him with sufficient clarity to enable him to understand the problem and to advise him appropriately. Finally, he needs sufficient mental capacity to understand and make decisions based upon, or otherwise give effect to, such advice as he may receive” (Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889). The claimant must be able to conduct the claim with the assistance of lawyers, not just be able to understand the advice of his lawyers.

The expert’s task

Carrying out mental capacity assessments is a complex task. For instance, in this case John presented with pre-morbid emotional vulnerability and limited education and life experiences. It was important to take into account how he used to make decisions before the TBI, because an individual with mental capacity is entitled to make unwise decisions. Although he had lacked capacity to conduct litigation, it appeared he had since been able to return to managing some aspects of his daily life reasonably well. His sister also indicated that she no longer felt that her role as Litigation Friend was justified. In the clinical interview the expert seeks an indication of the claimant’s level of functioning in everyday life and the way in which he deals with problems; what decisions he can make independently and what he may need help with, so indicating his ability to deal with issues. That can then be compared with the reports and information acquired from third parties. A formal cognitive assessment of the claimant – not just a screening – is helpful to understand the claimant’s cognitive functioning: namely intellectual, memory, language and executive skills – which will all impact on his ability to make decisions – together with specific questions aimed at assessing mental capacity. In relation to capacity to conduct litigation and therefore to instruct a solicitor, questions will be aimed at establishing John’s understanding of the claim: for instance what happened to him, how the claim has progressed, the

role of his lawyers, the other party and of the judge, and what can happen if the case goes to court. It is helpful to understand the claimant’s awareness of issues in relation to liability, and the nature of issues that are in dispute or have not been resolved in relation to the amount payable. In relation to capacity to administer the award and to manage finances, questioning is aimed at verifying John’s knowledge of his assets and the amounts available in a bank account, plus any loans, the cost of running the household and how much is spent every week/month. It would also look to ascertain how much income he has, what financial decisions he makes, how he would apply for a credit card or loan, how he would go about applying for a mortgage, how interest is calculated, what he would do if he were awarded a large amount of compensation and what the purpose of such compensation would be. It is also relevant to ascertain that the claimant is aware of the cost of usual everyday items, depending on his habits; for instance the cost of milk, cigarettes, beer, a ready meal or his typical weekly shopping and whether he budgets for larger items of expenditure. Plus, how John believes he is managing money – for instance if he overspends – and how that compares with before the TBI. As claimants with TBI may have poor awareness and be unreliable historians, additional information from interviews and sometimes witness statements from third parties is important. Reports from family, partner or friends and from the claimant’s solicitor can be particularly helpful. It is also helpful to understand the claimant’s engagement with various activities (including dealing with the solicitor) and interactions with people close to him, plus his understanding of common everyday life issues and his ability to weigh up pros and cons. Any history of financial mismanagement is important. Solicitors can assist by describing how they have found the claimant in their dealings with him, which can stretch over years. In particular, specific information on what issues have been discussed with the claimant about the claim – disputed liability, outstanding issues and financial matters such as a trust fund and its pros and cons, the appointment of trustees and the impact

on the claimant’s freedom of action – is helpful.

Reflections, considerations and learning points

• Whenever any doubts arise as to capacity, it is essential to instruct an expert to carry out a mental capacity assessment to avoid possible issues later on – which could include setting aside a settlement reached without a Litigation Friend being in place (Dunhill v Burgin [2014] UKSC 18). • The expert must reach a conclusion on capacity on the balance of probabilities, applying the statutory tests in the MCA 2005. • The expert must justify that conclusion logically from the findings of fact, and the factual information provided – from the claimant, witnesses, lawyers and from formal assessment. • It is important not to penalise a claimant for having limited life experience and lower educational attainment. An important consideration is the claimant’s ability to give instructions and to seek, understand and follow the advice of his legal team. • When considering capacity to administer an award and manage finances, it is important to consider the claimant’s ability to budget and to anticipate future expenditure, and his understanding of the heads of claim and the purpose for which damages are awarded – even though a claimant with capacity is free to spend damages as he wishes.

To summarise

John’s is a borderline case, particularly in relation to administering the award, and the opinion on capacity will depend on a close consideration of the evidence available, and whether the burden of proof (that he lacks capacity) has been satisfied. q • Giles Eyre is a barrister and associate member of chambers at 9 Gough Square, London. He is co-author of Writing Medico-Legal Reports in Civil Claims – an Essential Guide: Eyre & Alexander (2nd edition 2015), published by Professional Solutions Publishing. Dr Linda Monaci is a Consultant Clinical Neuropsychologist (www.monaciconsultancy.com). This article has been previously published in the New Law Journal.

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More psychologists are in court – and that’s a good thing! [VULNERABLE OFFENDERS with mental health, alcohol and

substance abuse problems are increasingly being diverted from shortterm custodial sentences and towards treatment that aims to tackle the causes of their offending. In the pilot areas – Birmingham, Plymouth, Sefton, Milton Keynes and Northampton – psychologists are working collaboratively with the existing panels of justice and health officials. Together, the professionals ensure that magistrates and judges have the information they need to determine whether an offender should be required to receive treatment for their mental health, alcohol or drug issues. They help to ensure that Community Sentence Treatment Requirements (CTSRs) are issued to the right people. CSTRs are a

Students taking ADHD drugs risk memory impairment [THE BRITISH PSYCHOLOGICAL SOCIETY has expressed

concern about instances of stimulants meant for people with ADHD being used by students without the condition. Drugs available on prescription, such as Adderall, improve cognitive functioning as well as attention in people with ADHD. The students take them in the belief that they will act as ‘smart drugs’ and boost their cognition – and so their academic performance. A new double-blind pilot study of healthy US college students, published in the journal Pharmacy, found that, though Adderall led to minor improvements in attention, it actually impaired working memory. The researchers, from the US and Iceland, recruited 13 healthy college students who were given Adderall before one five-hour test session and a placebo capsule before another. The participants then completed six neurocognitive tasks, timed to occur when the drug’s effect would be at its peak. Every half hour, the students also reported how much they were feeling any drug effects and their emotional state, and their heart rate and blood pressure were measured. The neurocognitive tests assessed various aspects of memory, ability to self-regulate and reading. The students also indicated whether they thought the drug had positively or negatively affected their performance on the tests. The results showed that the drug boosted levels of positive emotion and raised heart rate and blood pressure. It also led to slight improvements on the tests of attention and focus. But it worsened performance on one of the measures of working memory and also participants’ perceptions of their past cognitive and self-regulation functioning. It had no effect on reading performance. For the large numbers of students who report taking stimulants, the results suggest that, while the drugs might have a slight impact on attention, they do little to enhance their academic performance. And beside the effect on working memory, common side effects of Adderall include headaches, digestive problems and insomnia. q

joint initiative by the Ministry of Justice, Department of Health and Social Care, NHS England and Public Health England to improve access to treatment programmes for offenders serving community sentences. They require engagement with local health services under the terms of the sentence and failure to attend may represent a breach of that sentence. Dr Karen Slade, policy lead for the division of forensic psychology at the British Psychological Society, said: “I am delighted to see psychologists taking part in these pilot schemes. They are a welcome addition to the existing court process. “Treatment requirements are still not widely used as part of community sentences, yet a recent study for the Ministry of Justice found that offenders given mental health treatment as part of their sentence were significantly less likely to reoffend.” A protocol setting out a new minimum standard of service and additional training has been provided for staff in the pilot areas to improve collaboration between the agencies involved. It has increased confidence among sentencers, resulting in more CSTRs being issued in those areas. Initial figures suggest that, since the pilot sites went live late last year and early this, over 400 CSTRs have been issued. q

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Annual lecture examines PTSD

[THIS YEAR’S British Psychological Society joint lecture with the British

Academy was delivered by Professor Anke Ehlers FBA of the University of Oxford, and focused on post-traumatic stress disorder (PTSD) in survivors of traumatic events. Entitled Haunted by Memories, the lecture took place at the Royal Society in London on 13 September. People who develop post-traumatic stress disorder may be haunted by recurrent distressing memories that appear to be happening in the ‘here and now’ and re-experience the same distressing emotions that they felt at the time. Professor Ehlers (right) explained that traumatic events are more common in people’s lives than was previously thought. She quoted a study by the World Health Organisation that showed 70% of people reported experiencing a traumatic event during their lives. In a review of the lecture in The Psychologist magazine, Ella Rhodes said: “The most common events were found to be the unexpected death of a loved one, seeing harm done to others and road accidents. Interpersonal violence, particularly sexual violence, posed the greatest risk for development of PTSD.” Professor Ehlers is Professor of Experimental Psychopathology and the Wellcome Trust Principal Research Fellow at the Department of Experimental Psychology at the University of Oxford. She is also co-director of the Oxford Centre for Anxiety Disorders and Trauma. She is known for her work on psychological factors in anxiety disorders and post-traumatic stress disorders, and their treatment. She was also involved in the development of cognitive therapy treatment for PTSD, which has had success in treating the victims of the Omagh and London bombings. q

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Medication and dementia – a new approach is needed

[RECENT RESEARCH HAS highlighted new issues related to medication and

harm. In particular, in the April edition of The BMJ, Professor Chris Fox of the University of East Anglia reported the results of a study concerning the connection between the risk of developing dementia and the use of antidepressants, medicines for bladder incontinence and Parkinson’s medication. The research looked back over 20 years and analysed the primary care records of 100,000 patients. Professor Cox reported a 20% increase in the risk of developing dementia with commonly used medications, including the antidepressants prescribed to one million people. This study was the first to specifically link certain medications with anticholinergic effects to dementia. The NICE Dementia 2018 guidelines have highlighted the risks and prescribers are being advised to be careful with use of these medications, and to discuss and document discussions with patients. In a second, related study Professor Fox investigated the potential harm of commonly-prescribed sleeping tablets in people with dementia – the so called ‘Z drugs’, for example zopiclone and zolpidem. By investigating patient records he found a risk of serious fractures of the hip in those patients, with an increase of 40%. Those fractures have a 30% mortality rate. Professor Fox has concluded that people living with dementia should only be prescribed a hypnotic if the benefits clearly outweigh the risks – and any such prescription should be reviewed regularly. Fractures in people with dementia can have a devastating impact, including loss of mobility, increased dependency and death. The inescapable conclusion is that we desperately need better alternatives to the drugs currently being prescribed for sleep problems and other non-cognitive symptoms of dementia. q

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7R ZKDW H[WHQW FDQ &536 EH GHÂżQHG as a psychological condition? DR CHRIS JENNER MB BS FRCA FFPMRCA, consultant and expert in pain medicine, explores the validity of the argument often presented in medico legal cases involving CRPS, that it is a psychological condition. His researched article looks at whether there is evidence to support this argument and reaches the conclusion there is no strong or convincing evidence or research that CRPS is psychological in origin. Rather, the evidence strongly leads to the opinion that the condition has a pathophysiological cause or causes, ZLWK WKH SUREDEOH PHFKDQLVPV LQYROYLQJ LQĂ&#x20AC;DPPDWRU\ QHXURORJLFDO DQG DXWRLPPXQH UHVSRQVHV E\ WKH ERG\

>COMPLEX REGIONAL PAIN SYNDROME (CRPS) is an extremely

painful chronic condition that usually occurs after injury or surgery, although there have been reports of spontaneously arising cases. The disease is characterised by pain, heat and swelling of the affected limb, along with skin changes, which are disproportionate to the initiating event and do not heal within the expected time frame for the original injury. In chronic cases, the affected limb can become pale and cold, and muscle spasm and tightening may occur. CRPS is subdivided into Type I and Type II, depending on the absence RU SUHVHQFH RI D VSHFLÂżF QHUYH LQMXU\ 7KH FRQGLWLRQ DIIHFWV WKUHH WLPHV more women than men, with the combined incidence of the two CRPS types varying between 6.28 and 26.2 per 100,000 person-years, the differences being due in part to variation in the application of the diagnostic FULWHULD +RZHYHU WKHVH ÂżJXUHV DUH SUREDEO\ FRQVHUYDWLYH DV WKH FRQGLWLRQ is likely to be under-diagnosed due to a lack of knowledge about CRPS among health professionals. Diagnosis is based on the Budapest criteria, which includes the presence of at least two clinical signs, and three symptoms, in four FDWHJRULHV EXW WKHUH LV QR GHÂżQLWLYH WHVW IRU WKH FRQGLWLRQ 7KXV GLDJQRVLV can be problematic. $OWKRXJK &536 ZDV ÂżUVW GHVFULEHG GXULQJ WKH $PHULFDQ &LYLO :DU WKH cause of the condition is still unclear. It has been suggested that CRPS may be predominately psychological, or somatoform, in origin and that a diagnosis of CRPS validates a condition that often does not really exist. A somatoform disorder is one in which the symptoms presented mimic D SK\VLFDO GLVHDVH RU LQMXU\ EXW IRU ZKLFK WKHUH LV QR LGHQWLÂżDEOH FDXVH Therefore, CRPS sufferers are often viewed as malingerers or vulnerable individuals who have been labelled as sick by the medical profession. However, this view has been disputed by many CRPS experts. Individual VWXGLHV KDYH IDLOHG WR ÂżQG DQ\ FRUUHODWLRQ EHWZHHQ SV\FKRORJLFDO IDFWRUV and the development of CRPS. In fact, scores for psychological symptoms are generally average or below average when compared to those of pain or psychiatric patients, and there is no evidence to support a diagnosis of CRPS I patients as being psychologically different. Combined evidence from 31 studies found no overall association, with the few prospective studies considered showing no relationship between CRPS I and depression, anxiety, neuroticism or anger. Results from retrospective and cross-sectional studies were contradictory, although a majority showed no association. Importantly, studies of higher methodological quality tended to report no relationship with psychological symptoms, but many of the studies were of poor quality. A more recent review also concluded that while CRPS is not surprisingly associated with negative psychological outcomes, there is no support for VSHFLÂżF SHUVRQDOLW\ RU SV\FKRSDWKRORJ\ SUHGLFWRUV RI WKH FRQGLWLRQ Furthermore, there is no evidence that psychological intervention alone LV VXIÂżFLHQW WR FXUH WKH FRQGLWLRQ ,W LV DOVR SRVVLEOH WKDW WKH WHQGHQF\ of some practitioners to label CRPS as a psychological or psychiatric condition, when that is not the case, may actually be harmful to patients. While the relationship between CRPS and psychological factors is unconvincing, there is better evidence of a pathophysiological cause for the condition and several mechanisms have been suggested. Much of the current research on CRPS centres around the possibility that it is a result

RI DQ H[DJJHUDWHG LQĂ&#x20AC;DPPDWRU\ UHVSRQVH E\ WKH ERG\ WR LQMXU\ Indeed, the clinical signs of CRPS, such as pain and swelling, are typical RI LQĂ&#x20AC;DPPDWLRQ )ROORZLQJ WLVVXH GDPDJH RU QHXURQDO LQMXU\ DOWHUDWLRQV in the central and peripheral nervous systems may lead to increased LQĂ&#x20AC;DPPDWLRQ DQG DQ HQKDQFHG UHVSRQVLYHQHVV WR SDLQ $ UHYLHZ RI VWXGLHV UHYHDOHG WKDW SDWLHQWV ZLWK &536 KDG KLJKHU OHYHOV RI LQĂ&#x20AC;DPPDWRU\ IDFWRUV LQ WKHLU EORRG EOLVWHU Ă&#x20AC;XLG DQG FHUHEURVSLQDO Ă&#x20AC;XLG DQG WKDW GLIIHUHQW SURÂżOHV ZHUH IRXQG IRU DFXWH DQG FKURQLF FDVHV 5LVN IDFWRUV IRU &536 LGHQWLÂżHG E\ HSLGHPLRORJLFDO VWXGLHV LQFOXGH DVWKPD DQG $&( LQKLELWRU LQWDNH DJDLQ VXJJHVWLQJ WKDW QHXURJHQLF LQĂ&#x20AC;DPPDWLRQ is a likely contributor. For ACE inhibitors, the association with CRPS was stronger if the inhibitors were used for a longer time, or at higher dosages. The presence of immunoglobulin G autoantibodies in the serum of patients with CRPS suggests that autoimmunity may also be important in the development of the condition. This is further supported by the results of a trial where CRPS patients treated with intravenous immunoglobulin showed D VLJQLÂżFDQW UHGXFWLRQ LQ SDLQ V\PSWRPV FRPSDUHG WR WKRVH JLYHQ D SODFHER There may also be a neurological aspect to CRPS. During the acute phase of CRPS, the affected limb shows a reduction in the levels of circulating plasma norepinephrine compared to the unaffected limb. This results in compensatory upregulation of peripheral adrenergic receptors causing supersensitivity to circulating catecholamines. Exposure to catecholamines causes excessive vasoconstriction and sweating, leading to the characteristic cold and blue limb extremity seen during the chronic phase of the condition. Some patients undergoing standardised neurological examination â&#x20AC;&#x201C; involving light touch, pinprick and vibration sense with eyes closed and then open â&#x20AC;&#x201C; have reported referred sensations, which occurred in the body part immediately adjacent to the stimulated site. The sensations disappeared when stimulation ceased, or when a clinical improvement occurred. This suggests that the pain of CRPS is associated with central sensory changes. Furthermore, magnetic resonance imaging has demonstrated structural abnormalities of connectivity between brain structures in CRPS and these appear to be different from those seen in other chronic pain conditions. Post-mortem examination of CRPS patients shows atrophy (wasting) of gray matter of the right insula, right ventromedial prefrontal cortex and right nucleus accumbens and a decrease in fractional anisotropy (measurement of the movement of water molecules) in the left cingulum-callosal bundle, along with re-organisation of white matter connectivity, and these changes appear to be related to pain intensity and duration. Finally, there is some evidence of a genetic basis and familial risk in &536 EXW D FOHDU SDWWHUQ RI LQKHULWDQFH KDV QRW \HW EHHQ FRQÂżUPHG Siblings of patients under 50 years old appear to be at three times higher risk of developing the condition. Additionally, genes coding the human leukocyte antigen, involved in immune response, have been found to strongly correlate with the development of CRPS. In summary, there is no strong or convincing evidence that CRPS is psychological in origin. Rather, the evidence strongly leads to the opinion that the condition has a pathophysiological cause or causes, ZLWK WKH SUREDEOH PHFKDQLVPV LQYROYLQJ LQĂ&#x20AC;DPPDWRU\ QHXURORJLFDO DQG autoimmune responses by the body. T www.yourexpertwitness.co.uk

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BDA calls for changes in cereal packaging laws > DENTISTS’ LEADERS have called for sweeping

changes to food marketing and product formulation, as new research revealed the extent of misleading claims on sugar-rich cereals aimed at children. Analysis of packaging for the 13 top selling cereals by researchers from Cardiff University, published in the British Dental Journal, has revealed: • At the manufacturer's suggested portion sizes, eight out of 13 top cereals provide over half the Public Health England recommended daily sugar intake for 4-6 year olds. • Imagery used on packets depicts servings three times the size of manufacturers’ recommended portion sizes. Children eating these volumes would exceed their daily sugar allowance by 12.5% on a single bowl alone. • The majority of products featured potentially misleading nutritional claims, designed to offer a 'halo effect' – leading consumers to consider them healthier than warranted, or to ignore other warnings. Of the 13 most popular products, 11 made claims regarding one or more vitamins, while eight were considered extremely high in sugar. • Emotive language, such as 'yummy', 'magical' or 'meet new friends' dominated products aimed at children, with reassuring language on 'quality' and supposed nutritional value designed to appeal to parents. According to the British Dental Association, cereals are currently the second largest contributors of free sugars in children's diets, accounting for 8% of intake for 4-10 year olds and 7% for teenagers. Previous studies have concluded exaggerated portion

0RXWK PRGL¿FDWLRQV could be fatal, surgeons warn >ORAL AND MAXILLOFACIAL SURGEONS have warned

that oral piercings and tongue splitting are life-threatening and have urged people not to have the procedures. The British Association of Oral and Maxillofacial Surgeons %$206 ± WKH JURXS RI VXUJHRQV ZKR GHDO VSHFL¿FDOO\ ZLWK WKH infections and problems caused by oral piercings and tongue VSOLWWLQJ ± VD\V WKDW DQ\RQH KDYLQJ WKLV NLQG RI PRGL¿FDWLRQ PXVW go to hospital urgently if bleeding or an infection occur. BAOMS chair Patrick Magennis said: “Oral and maxillofacial surgery is the specialty that deals with life-threatening infections around the mouth. Although skin can be cleaned with antiseptic before piercings, the mouth cannot be cleaned in the same way. There is always a mix of germs, good and bad, and breaching the protective lining can let in a life-threatening bug. “It is unlikely that this advice will stop those who wish to pierce or modify their mouth or tongue, but people having this done to them must understand the risk and attend an oral and maxillofacial surgery department urgently if an infection begins to develop or if bleeding results. Their life could depend on it.” T

sizes can contribute to consumers pouring up to 42% more cereal than recommended. The BDA has expressed concern that cereal packet imagery continues to fall outside the Committee of Advertising Practice code relating to high fat, salt or sugary foods for children. It has called on government to deliver both concrete changes to marketing guidelines and mandatory targets for sugar reduction, as part of its landmark Obesity Strategy. Tooth decay remains the number one reason for hospital admissions among children aged 5-9. Russ Ladwa, chair of the BDA's health and science committee, said: “Breakfast is the most important meal of the day, but sadly marketeers are misleading the public on what constitutes healthy options and acceptable portion sizes. “It's a toxic mix, with claims on 'nutritional benefits' designed to blind consumers to sugar content, images of super-sized portions to encourage overconsumption, and emotive language to fuel pester power. The result is a recipe for tooth decay and obesity. “These billboards on our breakfast tables still fall entirely outside advertising regulations for marketing sugary foods to kids. Until government tightens up marketing rules, and sets concrete targets on reformulation, the UK will miss sugar reduction targets by a country mile.” T

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7KUHDW RI ÂżQHV GULYHV DZD\ patients, says BDA >THE BRITISH DENTAL ASSOCIATION has warned that low

income patients are turning away from NHS dentistry in droves, thanks to a hostile environment cultivated to keep costs down. 2IÂżFLDO ÂżJXUHV VKRZ D IDOO RI WZR PLOOLRQ WUHDWPHQWV GHOLYHUHG WR patients exempt from NHS charges since 2013/14 â&#x20AC;&#x201C; a fall of 23% in four years. Last year 6,819,158 free courses of treatment were provided, compared to 8,818,170 in 2013/14. Dentistsâ&#x20AC;&#x2122; leaders have expressed grave concerns that patients are being put off from seeking treatment by the governmentâ&#x20AC;&#x2122;s aggressive DSSURDFK WR ÂżQHV IRU ÂľPLVFODLPLQJÂś IUHH FDUH 2YHU KLJK QHHGV patients a year â&#x20AC;&#x201C; many on very low incomes, the elderly and those with OHDUQLQJ GLIÂżFXOWLHV Âą KDYH UHFHLYHG Â&#x2026; ÂżQHV VLPSO\ IRU WLFNLQJ WKH wrong box on forms. 7KH QXPEHU RI ÂżQHV LVVXHG ZHQW XS IROG LQ IRXU \HDUV Âą IURP 33,887 in 2012/13 to 365,181 in 2016/17 â&#x20AC;&#x201C; yet 90% of appeals are won. NHS England has circulated Donâ&#x20AC;&#x2122;t Assume Youâ&#x20AC;&#x2122;re Entitled campaign OLWHUDWXUH WR 1+6 SUDFWLFHV DQG DQ RIÂżFLDO 1+6 +HDOWK &RVWV WZLWWHU feed â&#x20AC;&#x201C; meant to provide advice on claiming â&#x20AC;&#x201C; is routinely discouraging claims and utilising the hashtag #DontRuntheRisk. Dentists have accused ministers of unwillingness to engage with hard-to-reach families, while pursuing low-impact, unfunded initiatives preaching to regular attenders. Data also reveals over 4.9 million children (41.4%) failed to see an NHS dentist in the past 12 months. Meanwhile, the NHS has spent

Â&#x2026; P RQ FKLOG WRRWK H[WUDFWLRQV LQ KRVSLWDOV VLQFH According to the BDA the government spend per head on NHS GHQWLVWU\ KDV IDOOHQ E\ Â&#x2026; LQ WKH SDVW ÂżYH \HDUV Âą IURP Â&#x2026; WR Â&#x2026; Âą ZKLOH SDWLHQW FKDUJHV KDYH LQFUHDVHG E\ RYHU 1HDUO\ RQH LQ ÂżYH patients have delayed treatment for reasons of cost, the BDA says. Its chair of general dental practice, Henrik Overgaard-Nielsen, said: â&#x20AC;&#x153;This huge fall in NHS attendance among patients exempt from NHS charges is the logical outcome of failed government policy. Ministers have created a hostile environment for vulnerable groups and those on low incomes who have a right to free dentistry. These patients, often with complex needs, require early intervention not the ever-present WKUHDW RI ÂżQHV â&#x20AC;&#x153;Sadly the government has shown no interest in getting hard-to-reach families to attend, when prevention could save our NHS millions.â&#x20AC;? T

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The dental expert: no longer a hired gun, but still a valuable asset By ANTONY VISOCCHI BDS MFDS RCS Ed MJDF RCS Eng

[WITH THE Civil Procedure Rules (Part 35) and the Jackson reforms

in 2013 legislating to stop the expert witness being a ‘hired gun’, it is my experience that this approach is still common when instructing experts. I am frequently asked to comment on whether negligence has occurred; as that is a legal outcome an expert should therefore not advocate, but provide the reasoned opinion to allow the court to decide. However, an expert witness who understands their role, and the process in which they are involved, can be a very valuable asset to the case regardless of whether it is in defence or pursuit of a claim. The knowledgeable expert witness will ensure that the salient matters are focused upon, and the case is not drawn down the cul-de-sac of client perceptions or the emotional motivation of the claimant. It is commonly an admission of lawyers, including judges, that they do not have a working level of dental knowledge. Therefore, being guided by your expert as to the matters within the case that have merit will save you time, achieve a quicker resolution and avoid the easy deconstruction of your case in cross examination. Your expert witness should have sufficient knowledge and experience of the area in which they are an expert. I would suggest that they should have been working in that field for at least 10-12 years and are still involved in the profession at some level. It is also important that the expert works in the same domain as the case relates to. A common method of undermining an expert is when the report is written by a senior academic or secondary care specialist, when the complaint relates to primary care. In addition to that, it is vital that the expert fully understands their role and the responsibilities that accompany it. Appropriate training and membership of nationally-recognised organisations and directories are a good way to assess the credibility of your expert. A capable expert will allow a case to be drawn together with substance and give you confidence that the matters you are raising have a sound basis. Therefore, it is vital to ensure that your expert has an opinion that is reasonable and evidence based. A weak report will simply reiterate the claimant’s or defendant’s position without explaining why, and leave your case open to reproach. In order to help you get the most out of the expert you are instructing, some fundamentals will help expedite the process and ensure you build a long and fruitful relationship.

Please do not:

• Use uncommon file formats – sending files in uncommon digital formats can cause delays and frustration • Send copious hospital records – if the claimant has had treatment at hospital, please try to avoid sending multiple lever arch files of irrelevant hospital records – for example, detailing that the claimant had an appendicectomy 12 years ago. It takes a long time to wade through them just to find that they have no relevance to the case • Adopt radio silence – please remember to keep your expert updated, especially once instructed. It keeps the momentum going if you can send the relevant details and requirements relatively quickly. It ensures that the expert can begin work and the report is not delayed. It can happen that considerable time will go by without contact and the expert does not know if they are still required; then a significant amount of documentation is sent with the expectation that the report will be provided in a short time frame • Delay paying your expert – experts are contracted by the instructing solicitor and not the solicitor’s’ client. Therefore, the terms and conditions of the expert should be abided by regardless of when a case is settled. Following these guidelines will ensure that you build a good relationship with your expert, which can be very beneficial to you in the long run both in terms of goodwill, speed of report turnaround, success for clients and your remuneration. q

Please do send:

• Clear instructions – that will include your requirements and the claimant’s position • Good clinical records – all relevant records need to be provided for before, during and after the incident, as well as the details of the reason for raising an action. The clinical records need to be provided all at the same time; otherwise, a true assessment cannot be made and the final report will be delayed. • Good-quality images – these should ideally be in digital format, sent digitally. Extremely good hard copy reproductions can be acceptable, but rarely will suffice alone. Ensure that all images are present and all are dated – photocopies or scans are not acceptable.

Clinical Examination

Please ask the expert if this is absolutely necessary. In many dental cases a clinical examination will not add anything to the information that can be gained from the documentation. For example, if a case is related to a tooth that was lost, it is likely that, at the very least, stabilisation treatment has been undertaken. Therefore, a clinical examination of a patient when the tooth is question is no longer present serves no purpose other than delaying the final report and adding cost to the expert’s fee. www.yourexpertwitness.co.uk

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AI system can match experts at detecting eye disease [AN ARTIFICIAL INTELLIGENCE (AI) SYSTEM that can

recommend the correct referral decision for over 50 eye diseases as accurately as world-leading experts has been developed by researchers at Moorfields Eye Hospital NHS Foundation Trust. The research project was carried out in collaboration with DeepMind Health and University College London (UCL) Institute of Ophthalmology. The breakthrough research, published online by Nature Medicine, describes how machine learning technology has been successfully trained to identify features of eye disease and recommend how patients should be referred for care, using thousands of historic de-personalised eye scans. It is hoped that the technology could one day transform the way professionals carry out eye tests, allowing them to spot conditions earlier and prioritise patients with the most serious eye diseases before irreversible damage sets in. Dr Pearse Keane, consultant ophthalmologist at Moorfields Eye Hospital NHS Foundation Trust and NIHR Clinician Scientist at the UCL Institute of Ophthalmology said: “The number of eye scans we’re performing is growing at a pace much faster than human experts are able to interpret them. There is a risk that this may cause delays in the diagnosis and treatment of sight-threatening diseases, which can be devastating for patients. “The AI technology we’re developing is designed to prioritise patients who need to be seen and treated urgently by a doctor or eye care professional. If we can diagnose and treat eye conditions early, it gives us the best chance of saving people’s sight. With further research it could lead to greater consistency and quality of care for patients with eye problems in the future.” The study, which was launched in 2016, brought together leading NHS eye health professionals and scientists from the National Institute for Health Research (NIHR) and UCL with some of the UK’s top technologists at DeepMind to investigate whether AI technology could help improve the care of patients with sight-threatening diseases, such

as age-related macular degeneration and diabetic eye disease. The AI system learnt to identify 10 features of eye disease from highlycomplex optical coherence tomography (OCT) scans. The system was then able to recommend a referral decision based on the most urgent conditions detected. To establish whether the AI system was making correct referrals, clinicians also viewed the same OCT scans and made their own referral decisions. The study concluded that AI was able to make the right referral recommendation more than 94% of the time, matching the performance of expert clinicians. The next step is for the research to go through clinical trials to explore how this technology might improve patient care in practice, and then obtain regulatory approval before it can be used in hospitals and other clinical settings. Professor Andrew Lotery, chair of the scientific committee of the Royal College of Ophthalmology, welcomed the news. He commented: “This paper shows the power of utilising artificial intelligence in ophthalmology. Innovative research such as this could help hospital eye services manage their clinics more effectively in the future.” q

Eye tests essential for fall prevention [TRY BALANCING on one leg with your eyes closed. It’s tricky,

isn’t it? We need the right input from the visual, proprioceptive and somatosensory systems to stay on our feet. That, says the British and Irish Orthoptic Society (BIOS), is why it’s important to assess vision for falls prevention. Guidance from the National Institute for Clinical Excellence (NICE) states that the multifactorial assessment should include an assessment of visual impairment. While there has been progress in raising the importance of vision assessment in falls patients, the NICE impact report on falls and fragility fractures highlighted that ‘fewer than half of falls patients had a documented assessment of their vision’. According to BIOS: “Perhaps the problem is that we’re not sure what a ‘good’ visual assessment looks like. Reduced visual functions such as visual acuity, contrast sensitivity, depth perception and visual fields have all been shown to be associated with increased risk of falls. Depth perception can potentially be an issue when negotiating that ‘step’ or ‘kerb’ if there is a difference in visual acuity between each eye or misalignment of the eyes.” The BIOS report points out that, with an ageing population, we will see an increase in age-related visual impairment such as AMD and glaucoma, and an associated decline in visual function. The report continues: “As a minimum, part of our falls prevention

strategy should include routine advice for patients to have their eyes tested every two years or as advised by their optician. The multifactorial falls assessment should include an assessment of visual acuity of both eyes, which at the very least will identify reduced vision as a start.” q

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New standards aim to improve patient care [A NEW SET of patient standards designed to improve

care for eye clinic patients has been developed jointly by the Royal National Institute of Blind People (RNIB) and the UK Ophthalmology Alliance (UKOA). The national standards – launched on 20 September – make clear the importance of patient support and state that all eye clinics should have an eye clinic liaison officer (ECLO) and adhere to the RNIB ECLO Quality Framework. RNIB's Visibly Better Standards are also cited, with the aim of improving the built environments of eye clinics to make them more accessible for people living with sight loss. ECLOs work alongside health professionals to offer support and advice to people affected by sight loss in a range of areas. These include independent living, returning to work, benefit entitlements, emotional support, and coping at home. ECLOs can also assist with certification and registration to ensure that newly diagnosed people receive timely support from social care. Keith Valentine, RNIB’s director of development, said: “RNIB and the UKOA have worked hard to develop these standards. We believe they will have a significant impact on the patient journey and increase support for those in eye clinics. “It can be an overwhelming experience being told you are going to lose your sight. That feeling is compounded if people have to deal with it alone. ECLOs provide much needed information, advice and guidance.” Melanie Hingorani, consultant ophthalmologist and chair of the UKOA, added: “Patients in eye clinics and those with visual impairment have very specific needs. Although there is national guidance for patient care, none was specific for eye care. This new document brings together all the relevant guidance, combined with professional

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expert views and what patients have told us is important, to give one comprehensive standard for patient care and patient experience in eye clinics. This is a fantastic example of how professionals and patients working together can make a difference.” Although the standards won't be mandatory, it is hoped they will be hugely influential and that the patient organisations and ophthalmology departments involved will help to build on their implementation. q • The UK Ophthalmology Alliance brings together eye care professionals, patient groups and national ophthalmic bodies across the UK to improve efficiency and pathways, create quality standards, benchmark performance and provide support in areas where performance can be improved.

Patients with pacemakers should have equal access to MRIs [ONE IN 50 of the UK population over 65 years – about 440,000 people – have a pacemaker or implantable cardioverter defibrillator (ICD). These devices are traditionally considered contraindications to MRI scanning. MRI is an unmatched diagnostic test across an expanding range of indications – including cancer, neurology, cardiovascular and

New drugs could help prevent heart disease [NEW DRUGS that lower levels of triglycerides in blood

could further reduce the risk of heart attack when added to statins. The new drugs, which are in various stages of development, could also reduce blood glucose levels and the risk of diabetes, according to a new genetic study from the Medical Research Council’s Epidemiology Unit at the University of Cambridge. The scientists behind the research suggest that the new drugs – lipoprotein lipase enhancers – could be paired with statins – the current gold standard for high cholesterol treatment – or other cholesterol lowering agents. Their findings, which stem from a type of genetic study which aims to simulate a clinical trial, hold promise for clinicians and pharmaceutical companies that are considering testing the efficacy of these novel drugs. Dr Luca A Lotta, senior clinical investigator at the MRC Epidemiology Unit, said: “Our study suggests that these new triglyceride-lowering agents could give additional benefits to patients with heart disease when added to statins. This combination could prevent more heart attacks as well as reduce the risk of developing Type 2 diabetes.” Heart disease is a significant problem in the UK, tied to more than a quarter of all deaths in the country, according to 2018 estimates. One of the major factors leading to heart disease is high levels of low-density lipoprotein or LDL cholesterol, often referred to as ‘bad cholesterol’. q

musculoskeletal disorders – and is now fundamental to diagnosis, treatment planning and monitoring. The consequences of not undergoing MRI when indicated include late and misdiagnosis, the use of other more invasive tests with less robust performance, more complications and more expense. Many treatments are precluded without MRI planning, including neurosurgery and CyberKnife radiotherapy – potentially resulting in worse clinical outcomes for patients. Fortunately, two recent developments have changed the situation whereby patients with pacemakers or ICDs are not considered for MRI scanning. It is now industry standard for ICDs to be ‘MRI conditional’, meaning that over 95% of devices implanted currently are safe to scan under certain conditions. Alongside that, a large body of evidence found that legacy ‘nonMRI conditional’ devices can be scanned safely if pre-defined protocols are followed. The technical debate is now effectively over. In the UK, estimates suggest there are 50,000 scans a year needed for cardiac device patients, but latest data suggest that only around 1,000 scans a year are actually being performed. Equity of access would be likely to result in around 1% of adult MRIs being done on pacemaker/ICD patients. The British Cardiovascular Society and the Clinical Imaging Board (a joint body of the society and the College of Radiographers, the Institute of Physics and Engineering in Medicine and the Royal College of Radiologists) believe that patients with cardiac devices should no longer be disadvantaged and have the same access to MRI scanning in the NHS as everyone else. q

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Consent in surgical practice By MR NIKHIL SHAH, consultant trauma and orthopaedic surgeon at the Wrightington Hospital in Wigan

>THE RECENT Montgomery judgement (2015) has implications

for doctors in obtaining informed consent. Before the judgement, the reasonableness of care provided was assessed in accordance with the Bolam principle (Bolam v Friern 1957). A doctor is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art. The opinion however had to be logical and defensible (Bolitho). In 2015 the Supreme Court delivered the Montgomery judgement in the case of Montgomery vs Lanarkshire Health Board. In brief, the doctor looking after the patient had a policy of not routinely advising SDWLHQWV RI WKH VSHFLÂżF ULVN RI VKRXOGHU G\VWRFLD GXULQJ YDJLQDO GHOLYHU\ because the likelihood of complications to the baby was deemed to be very small, and felt that if the risk was advised most women would opt for caesarean section. This was not necessarily in the motherâ&#x20AC;&#x2122;s best interest according to the doctor. Unfortunately the complication did PDWHULDOLVH DQG WKH EDE\ KDG VLJQLÂżFDQW GLVDELOLWLHV 7KH FDVH DWWUDFWHG a lot of media attention. The Montgomery judgement ruled that it is the duty of the doctor to HQVXUH WKDW ÂżUVWO\ WKH SDWLHQW LV DZDUH RI DQ\ PDWHULDO ULVNV LQYROYHG in the recommended treatment, and secondly, of reasonable alternative treatments. The test of materiality was â&#x20AC;&#x2DC;whether a reasonable person in the patientâ&#x20AC;&#x2122;s position would be likely to attach VLJQLÂżFDQFH WR WKH ULVN RU WKH doctor is or should reasonably be aware that the particular patient would be likely to attach VLJQLÂżFDQFH WR LWÂś This shifted the emphasis in obtaining consent from the doctor to the patient. Consent would be assessed on the basis of what the reasonable patient wanted to know rather than what a reasonable doctor chose to say. The patient has the right to choose the treatment option rather than the doctor. This was a turning point in medical litigation. The responsibility for determining the nature and extent of a personâ&#x20AC;&#x2122;s rights rests with the courts, not with the medical profession. It is not a matter of expert medical opinion. The court would decide what is reasonable not the profession. 7KH GRFWRUÂśV GXW\ ZRXOG QRW EH IXOÂżOOHG PHUHO\ E\ JLYLQJ SHUFHQWDJHV $OVR LW ZDV QRW VXIÂżFLHQW WR ERPEDUG WKH SDWLHQW ZLWK WHFKQLFDO information they may not grasp or to routinely demand their signature on a consent form. Consent is a process not an event in time. The role of the doctor or the surgeon involves establishing a clear dialogue with the patient DQG JLYLQJ D FOHDU ULVN EHQHÂżW DQDO\VLV RI WKH SURSRVHG WUHDWPHQW 7KH reasonable alternative options that are available need to be discussed including the option of conservative treatment or doing nothing. All material risks need to be explained and the consequences of that risk to the patient need to be understood by the patient. It is important not to overestimate the prospect of success or underplay the consequence of a risk. The Royal College of Surgeons also emphasised that the patient must understand the options available. However the principles outlined

in the judgement were not really new to doctors. The GMC guidelines in 2008 and the DOH guidelines in 2009 gave these same principles and guidelines in the matter of consent. The judgement therefore spelt out in law what the doctors were practising â&#x20AC;&#x201C; or should be practising. The GMC had outlined the doctorâ&#x20AC;&#x2122;s duty in focussing on the individual SDWLHQW DQG WKH ULVNV VSHFLÂżF WR WKHP ÂżQGLQJ RXW LQGLYLGXDO YLHZV about adverse outcomes that most concern them. The doctor must tell patients of any serious adverse outcome (even if the risk is small) and also of any less serious side effects or complications, if frequent. The DOH guidance had emphasised the importance of outlining any alternatives to the proposed treatment as well as the risks incurred by doing nothing. It is important also to individualise the risks. The information provided LV VSHFLÂżF WR WKH SDWLHQW 7KLV UHTXLUHV D WKRURXJK XQGHUVWDQGLQJ of the patient, their history, views, psyche, social and occupational circumstances, and attitudes to risk â&#x20AC;&#x201C; in addition to their detailed medical history. Good quality documentation needs to be maintained. Copying the clinic letters to patients is very useful. It is important that the doctor should provide balanced LQIRUPDWLRQ DERXW EHQHÂżWV DQG risks and the options available to treat the condition. It is even more important to ensure that the patient has understood the information, and also the consequences of what would happen if the risk were to materialise. A record of the information given should be made in the notes. Adequate time has to be given IRU WKH SDWLHQW WR UHĂ&#x20AC;HFW DQG change their mind if they wish to. The patient is then expected to ZHLJK XS WKH SRWHQWLDO EHQHÂżWV risks and burdens of the various options and decide whether to accept any of them and, if so, which one. There needs to be provision for multiple meetings in some cases to ensure that the patient gets a chance to digest the information provided and ask for FODULÂżFDWLRQ LI QHHGHG ,W LV LPSRUWDQW WR KDYH D SURFHVV WKDW DOORZV WKH patient to own their decision to choose their treatment. Many trusts across the NHS are working to develop a robust consent process, making sure that they comply with the Montgomery judgement and the principles outlined in the GMC guidance. This would focus on different methods of providing the necessary information in addition to the clinic encounter, use of information booklets, multi-media, and internet based sources of information. A good process will also ensure that it can show that the patient has taken the effort to thoroughly understand the information provided and has then made a truly informed decision. The whole process needs to be meticulously documented and show that there was a genuine dialogue between the doctor and the patient. This will help deliver patient centred care, allowing doctors to work in partnership with patients after listening to their views and giving them the information they want and need to make decisions. It is important to remember that consent is a process not a signed form. T www.yourexpertwitness.co.uk

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Missed fracture leads to compensation >LONGDEN WALKER AND RENNEY have reported a case where

WKH\ REWDLQHG Â&#x2026; LQ GDPDJHV IRU D FOLHQW ZKR VXIIHUHG DV D UHVXOW of the clinical team at his local hospital failing to identify a fracture. â&#x20AC;&#x2DC;Donaldâ&#x20AC;&#x2122; (not his real name) suffered an accident at work in August 2014. He hurt his ankle and visited Sunderland Hospital in the following week after his pain grew worse. The clinical team carried out an X-ray and told him that he was suffering from a soft tissue injury and to just rest until his leg felt better. When his symptoms didnâ&#x20AC;&#x2122;t improve, despite calling the hospital for further advice, his GP referred him to Spire Washington Hospital for an MRI scan and X-ray. The X-ray revealed the fracture was at an advanced stage of healing, with prominent callus formation consistent with nonimmobilisation of the injury nine weeks previously. Donald contacted Longden Walker and Renney, who began an investigation by obtaining copies of his medical records, preparing a witness statement and obtaining a report from an independent consultant radiologist. The radiologistâ&#x20AC;&#x2122;s evidence was that the initial X-ray showed a visible IUDFWXUH DQG WKDW WKLV ZDV PLVVHG E\ WKH $ ( VWDII DQG WKH UHSRUWLQJ radiologist. The medical expertâ&#x20AC;&#x2122;s view was that this failure fell below the standard of care expected from a competent radiologist and had led to a delay in diagnosis of approximately eight weeks. City Hospitals Sunderland NHS Foundation Trust made admissions and, although it disputed the extent of the harm caused, proposed an out-of-court settlement. â&#x20AC;&#x2DC;Donaldâ&#x20AC;&#x2122; accepted settlement IRU Â&#x2026; T

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Shake-up proposed for north London orthopaedics

>A REVIEW OF adult elective orthopaedic care services across

north central London is being carried out. The review will run through to next spring. ,Q WKH ÂżUVW SKDVH RI WKH UHYLHZ 1RUWK /RQGRQ 3DUWQHUV LQ Health and Care are inviting responses to a draft case for change: a document which puts the case for why the review is needed and early thoughts on how that kind of surgery might be organised in the future. This initial intensive engagement phase will run until 19 October. At present, elective adult orthopaedic care is delivered in 10 separate sites in the area. The NHS believes there may be opportunities to improve the quality and the outcomes of that care by creating a smaller number of specialist centres with ringfenced facilities to carry out adult elective orthopaedic hand, ankle, foot, hip, knee and shoulder surgery. Current thinking is that emergency orthopaedic care will still be delivered at local hospitals, as it is today. Anyone with views is invited to read the case for change â&#x20AC;&#x201C; on the website at www.northlondonpartners.org.uk/orthopaedicreview â&#x20AC;&#x201C; and let the partnership know their thoughts. T

Orthotists can provide evident relief By STEPHEN SECCOMBE Consultant Orthotist

[HEALTH PROFESSIONALS recognise that a client’s treatment

requires input from a range of professions working together, often at a distance, to achieve the optimum outcome. On many occasions, however, there are opportunities to work together face-to-face to tackle clinically challenging problems. Such is the case with orthotic treatment, which often complements many other forms of treatment. Orthotics involves the design and manufacture of devices to modify or correct functional and structural characteristics of the neuromuscular and skeletal system. Orthoses can range from a simple shoe raise to a device that is worn on the whole leg, arm or spine. Successful orthotic treatment can elicit comments such as: “I’m now not so tired at the end of school and I can keep up with friends at play time,” or “My gait is less obvious and I am therefore more inclined to walk around at work. Certainly there is more efficiency as I am less tired at the end of the day, which means I can help with chores around the house after a day’s work. Also, according to friends and family, I am noticeably happier in my disposition!” 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 are 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, their durability and cost. If a report is needed on a specialist subject, then a lawyer should make sure they instruct a specialist. q

Foot drop awareness has its day [ THE FIRST-EVER Foot Drop Awareness Day was declared on 21 September. Foot drop is a condition that occurs when muscular weakness or paralysis makes it difficult for a person to lift the front part of their foot and toes. The national awareness day aimed to educate the public about the condition and eradicate unmanaged cases, which can often cause falls. It has been organised by the National Foot Drop Society, a charity that aims to raise awareness of physiotherapy and orthotic solutions for the condition. Jon Graham, the clinical director of PhysioFunction, founded the organisation. He said: “A fall with a fractured hip costs the NHS £25,000. The cost of fallers to the NHS is £2bn annually – how many of those are due to foot drop? Foot drop is a common feature in stroke, MS, incomplete spinal cord injury, Parkinson’s and also in lumbar spine disc problems, hip and leg injuries. “Physiotherapy is vital to its management – which can involve stretches, strengthening, gait re-education, functional electrical stimulation or referral to an orthotist for suitable splints or other orthotics. “But for various reasons, individuals with foot drop can slip through the net. I do not know a physio or an orthotist who does not regularly encounter people with ‘unmanaged’ foot drop in the community and they have to decide: do I approach this person and ask if they know that something can be done, or walk on?” q www.yourexpertwitness.co.uk

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Deep vein thrombosis: what if it’s not a DVT? 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) is a regular problem presenting to doctors in general practice, as well as in hospitals. The National Institute for Clinical Excellence (NICE) has published details on the steps medical practitioners in hospital should take to prevent patients developing this complication of treatment. Guidelines have also been published on the diagnosis and treatment of deep vein thrombosis, aimed at assisting clinicians in using the correct investigations in particular situations – so avoiding overwhelming radiology departments with large numbers of patients with suspected DVT who turn out to have no blood clots in the deep veins. Much of the management of suspected DVT is by nurse-led clinics, which use a well-defined pathway of management established by the NICE guidelines. However, I have come across a number of instances where DVT was incorrectly diagnosed, or the diagnosis missed, due to the incorrect application of the guidelines.

Case one

A 76-year-old man presented to his GP with a three-month history of progressive painful swelling of the thigh. The calf and ankle were not swollen. He was referred to hospital and managed via a nurse-led clinic. A DVT was suspected and ultrasound imaging of the venous system arranged, which showed venous thrombosis in the femoral vein. Anticoagulant treatment was commenced but the swelling and pain in the thigh worsened. He was reviewed in the haematology clinic after six weeks and a further course of anticoagulant treatment prescribed. Review after a further two months showed that the pain and swelling had worsened. Eventually, a malignant tumour of the thigh was found on magnetic resonance imaging, but was too large for excision by that time. A delay in diagnosis of six months had accrued. The patient later died of his tumour. The problem in this case was that the deceased was treated according to a DVT clinical pathway when he didn’t have a DVT. The symptoms of progressive pain swelling are not typical of a DVT, which is of rapid onset and gradual resolution with appropriate treatment. Ultrasound imaging, which was done at the outset, showed the DVT but also that swelling lay within the muscle compartment of the thigh. Usually in a DVT the swelling is of the subcutaneous tissues and affects the calf and ankle at first, rather than the thigh. The clinicians involved were not aware that malignant soft tissue tumours may masquerade as DVT and that the clues lie in the history and pattern of leg swelling.

Case two

A 32-year-old patient was referred to me with painful varicose veins and suspected thrombosis in some varices. However, clinical examination revealed the presence of a hard lump at the knee about 2cm in diameter and attached to the bone. Ultrasound imaging showed a cyst arising from the knee joint. The tissues at the knee which may give rise to tumours include bone and cartilage, although they are uncommon. Malignant tumours arising from those tissues are usually very malignant and carry a poor prognosis.

I recommended urgent referral of the patient to an orthopaedic surgeon, who excised the cystic lump. Fortunately, it proved to be a benign tumour of cartilage, which was completely cured by this treatment. I later completed treatment of the patient by ablating her varicose veins using a modern, minimally-invasive treatment. In this case, varicose veins and a benign tumour coexisted in the same limb.

Case three

A 41-year-old patient presented to the A&E department with pain in the right calf. There was no calf swelling, but a blood test, called a d-dimer, was done. This test provides a measure of the rate of formation of blood clot in the body. In suspected acute deep vein thrombosis, the blood test provides a means of identifying patients who require further investigation. D-dimer levels can be elevated in a number of conditions and in any situation where a blood clot is forming. NICE recommends use of this blood test as part of the diagnostic pathway for patients with suspected DVT. In this case, the d-dimer level was marginally elevated. A diagnosis of acute DVT was suspected and therapeutic anticoagulant treatment was commenced. Arrangements were made for confirmatory ultrasound imaging. NICE advises that this test should be done within 24 hours of the start of the treatment. On this occasion, eight days elapsed before the ultrasound scan was done. The ultrasound imaging showed no DVT, but the popliteal artery at the knee was blocked. The problem was one of acute limb ischaemia, which cannot be treated adequately by anticoagulant drugs alone. Emergency surgery was done to restore blood flow to the leg, but that failed and a belowknee amputation was required. The delay in diagnosis was a substantial factor leading to the need for an amputation. The clinicians had failed to check the blood flow to the leg by feeling the ankle pulses and had missed the diagnosis at the initial consultation. Had the ultrasound imaging been arranged in a timely manner the mistake may have been corrected. NICE recommendations were not complied with in the clinical pathway that the doctors were using.

Clinical pathways

Clinical pathways and a wide range of blood tests, as well as imaging investigations, greatly assist in reaching the correct diagnosis and facilitating the safe management of patients. However, they do not replace old-fashioned clinical skills. In the first case described, the patient did not have classical clinical features of deep vein thrombosis and required a different set of investigations to establish the cause of progressive limb swelling. A delay of six months occurred before the correct tests were done. In the third case, the doctors forgot to check on the circulation to the foot from the arterial side. Of course, they suspected that the venous side of the circulation was the problem, but the arterial side should also be checked where sudden onset of leg pain arises, since blocked arteries are also a common cause of this symptom. An adequate knowledge of clinical medicine and application of that knowledge cannot be replaced by unthinking application of clinical pathways and modern blood tests and radiology. q www.yourexpertwitness.co.uk

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Plastic surgery death prompts response from British surgeons [FOLLOWING NEWS of the

death of a British woman following so-called Brazilian buttock lift (BBL) surgery, the British Association of Aesthetic Plastic Surgeons reiterated its warnings about the danger of surgery abroad. While stressing that it could not comment on individual cases, it also drew attention to the potential for serious complications relating to BBL surgery – risks which are minimised, if at all mentioned, by many offering it. Consultant plastic surgeon and BAAPS member Bryan Mayou commented: “The surgery technique known as Brazilian ‘butt’ lift is the process of recontouring the lower back and loins with liposuction, reinjecting the unwanted fat to augment the upper buttocks in order to create a pert, lifted effect. “If fat is injected deep into muscle tissue and lower down on the buttocks, there is a risk of incorrectly injecting fat into large veins. The fat, now an embolus, can pass around the bloodstream, into the lungs and cause death. “Fat grafting is an established technique carried out by surgeons across the globe for a number of reconstructive and aesthetic problems. However, many of those offering the procedure –

particularly for BBL – are without training in these techniques. BBL's popularity is often promoted by celebrities via unmonitored social media marketing, targeting young and vulnerable people.” Mr Mayou pointed out that a number of international societies for plastic surgery have set up a task force to monitor and report on the situation. The results show that there is a mortality rate of one in 3,000 following BBL. All deaths investigated were due to fat emboli and in each case fat was found in the buttock muscle. He continued: “Surgeons carrying out this procedure must have proper knowledge of anatomy and training in fat grafting techniques; and it is imperative that they are properly-qualified plastic surgeons, who perform the surgery in an appropriate hospital setting. Patients should avoid anyone offering the surgery outside a clinical setting, and remember that BAAPS is firmly against cosmetic surgery tourism, which purports to offer discount prices when patients travel abroad. The standard of care is not equivalent in every country, and by making the decision to undergo cut-price surgery, patients risk serious complications and even – as this tragic story illustrates – death.” q

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Report highlights issues in obstetric anaesthesia [THE Royal College of Obstetricians and Gynaecologists (RCOG)

has published a report into anaesthetic care, as part of its national quality improvement programme into stillbirths, neonatal deaths and brain injuries that occur during childbirth. The Each Baby Counts programme aims to reduce the number of babies who die or are left severely disabled as a result of incidents occurring during term labour by 50% by 2020. Last year the RCOG published a landmark report which found that 76% of babies might have had a different outcome with different care. It also included recommendations highlighting factors in the care of many babies that may prevent such incidents in the future. Key findings of the latest report include: • Many of the lessons on ‘human factors’ identified in the Each Baby • Counts full report in 2015 are echoed in this latest report. • Although there were no babies for whom anaesthetic problems • were thought to be the sole contributor to their outcome, most of • the anaesthetic issues noted in the reviews contributed to delays in • delivery. • There is a clear need to optimise communication about the urgency • of delivery to allow for informed choice of method of anaesthesia. Key themes for improvement also included the care of women with partially effective regional anaesthesia and failed intubation. The report has made a number of recommendations, including the need for the development of a structured communication tool to include the three-fold elements of a delivery plan: mode of delivery, location of birth and category of urgency. The RCOG is committed to collaborating with the relevant organisations to produce one at the earliest opportunity. All local reviews conducted into adverse neonatal outcomes should, where relevant, involve an obstetric anaesthetist and should include review of the detailed anaesthetic record.

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The report also recommends that anaesthetists should always be informed of the degree of urgency of a delivery. As an aid to communication, the classification of urgency of caesarean section should be used for all operative deliveries, vaginal as well as abdominal. A decision about the purpose of transfer to theatre and urgency of any delivery should be made, together with the anaesthetist, before transfer to theatre. The degree of urgency should be reviewed on entering theatre prior to the WHO check, and the obstetrician should confirm the degree of urgency directly to the anaesthetist. In addition, anaesthetists should use a structured and validated anaesthetic handover tool between shifts and, if possible, participate in the routine labour ward handover/review of the delivery suite board. That would help maintain situational awareness and enable early anticipation of anaesthetic difficulties. All women who receive epidural analgesia should be reviewed to ensure the effectiveness of the epidural and to minimise delays should the need for operative delivery arise. The function of an in-labour epidural should be taken into consideration when deciding on the most appropriate and timely means of anaesthesia. The report stresses that the safety of the mother must be the primary concern at all times. Women should not be put at risk of airway problems through inadequate preparation/positioning as a result of haste to achieve a rapid delivery. The required equipment for the management of difficult and failed tracheal intubation in obstetrics should always be available and all anaesthetists should undergo specific difficult airway training. The RCOG was supported by the Obstetric Anaesthetists’ Association and the Royal College of Anaesthetists in the publication of the report. q

Digital records will aid information sharing [A NEW STANDARD has been published to support the introduction

of digital maternity records that will ensure that record information is consistent and can be shared more easily across healthcare services in England in the future. As part of the national plan to improve maternity services, the NHS is changing the way information is shared between women, their midwives, doctors and other members of the health care team. The first step in the process is to standardise the information held in digital maternity records. Once implemented, the new standard will enable improved information exchange between IT systems and services across

Midwives shocked by FGM report [THE ROYAL COLLEGE OF MIDWIVES (RCM) has

responded to the annual report published by NHS Digital on female genital mutilation (FGM). Janet Fyle, professional policy advisor at the RCM, said: “We have reviewed this annual data and we are concerned about the numbers of FGM undertaken in England in 2017-2018, particularly to children under five years of age, those aged 5-10 and aged 10-17. What is of utmost urgency, that must be explained, is the fact that 85 cases of FGM took place in England, some to British children. “NHS Digital have also confirmed to the RCM that up to seven British girls under the age of five years and seven girls aged between five and 10 years may have had FGM. These statistics are truly shocking. “We are failing British-born children if we do not tackle this heinous crime; and that has to start from within communities where this practice is seen as the cultural norm, despite it being illegal here in the UK. “Midwives are among the key frontline healthcare professionals who can identify and prevent female genital mutilation, due to the fact that most survivors of FGM are usually identified when they are pregnant; but all healthcare professionals must remain vigilant in identifying girls at risk. “The RCM has been providing its members with improved learning resources such as i-learn tutorials, along with practical advice and support to enable them to continue to identify and provide support for survivors – and most importantly, to work with other health and social care professionals to safeguard girls at risk of FGM here in the UK.” q

England. That will save time for health care professionals and women by ensuring they have the necessary information, in the right place and at the right time, to make decisions for safer care. The new guidance builds on the Healthy Child Record standard, published by the Professional Record Standards Body (PRSB) last October. Together these new standards provide a seamless pathway for maternal and newborn care. That will enable midwives and clinicians to provide all-round care for women and their babies, and mothers will be able to manage their own health and that of their child more easily in future. The standard has been developed by the PRSB and NHS Digital, with support from the Royal College of Physicians’ Health Informatics Unit. It has been informed by the views of midwives, obstetricians, mothers and other professionals to ensure the right information is included. Dr Karen Selby, PRSB’s representative from the RCOG, provided clinical leadership on the project. She said: “Creating standards for digital exchange of health information is a significant step forward in supporting the work of the Maternity Transformation Programme. It is a great example of collaborative working, as health professionals and women have all been involved in creating the standard.” Mandy Forrester, head of quality and standards at the Royal College of Midwives, said the new standard will support better continuity of care. “This will help to make care safer as clinicians will have access to key information about the woman, such as existing medical problems,” she said. “It should also avoid the need for women to repeat information to different clinicians during their pregnancy journey. This is a positive step and one that we welcome.” q

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Noise at work:

Mindfulness helps share your experiences tinnitus sufferers [THE CHARITY Action on Hearing Loss Scotland has been

urging people who worked in noisy environments at times when hearing protection was not legally required to share their views and experiences of seeking support to cope with tinnitus. Tinnitus is the sensation of hearing ringing, hissing, buzzing, whistling or humming when there is actually no external sound. Persistent severe forms of tinnitus can significantly impact on people’s sleep, concentration, stress levels and mental health. Nowadays the Control of Noise at Work Regulations 2005 place a duty on employers to reduce the risk to their employees’ health by controlling the noise they are exposed to while at work. They replaced the Noise at Work Regulations 1989, which previously covered noise in the workplace. The duties set out in the Health and Safety at Work Act 1974 were more general in scope and meant that employers needed to take action if noise created a risk to people other than workers. The charity is asking people to share details about where they have gone for help. Action on Hearing Loss Scotland’s Teri Devine said: "In the past many people in Scotland will have worked in factories, shipyards, coal mines, steelworks or on construction sites, or served in the armed services, at times when hearing protection was not legally required, and may now have tinnitus. “We urge people to share their experiences with us about what steps they have taken to get information or support to minimise the impact of tinnitus, which can be annoying if it’s mild and intermittent or very frustrating and distressing in more severe cases." q

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[A BRITISH STUDY has found that mindfulness may help

people who suffer from tinnitus. The study also found that a mindful approach to tinnitus helps more than relaxation therapy. The research was led by Dr Laurence McKenna from University College London Hospitals NHS Foundation Trust and Dr Elisabeth M Marks from the department of psychology at the University of Bath. It was published in the journals Ear and Hearing and Psychotherapy and Psychosomatics. In the study, mindfulness-based cognitive therapy (MBCT) was associated with significant improvements on all outcome measures. “We compared MBCT to relaxation therapy – a traditional treatment for people with chronic tinnitus – to determine if MBCT was a better option,” said Dr Marks. “In total, 75 patients took part in the trial at UCLH’s Royal National Throat, Nose and Ear Hospital, receiving either MBCT or relaxation therapy. The study found that both treatments led to a reduction in tinnitus severity, psychological distress, anxiety and depression for patients.” Another 182 adults with chronic and distressing tinnitus completed an eight-week MBCT group programme. Measures of tinnitus-related distress, psychological distress, tinnitus acceptance and mindfulness were taken before and after the MBCT group and again at six-week follow-up. Relaxation therapy typically provides patients with specific skills to reduce stress levels. In contrast, MBCT teaches patients to pay purposeful, present-moment attention to experiences, rather than trying to suppress them. q

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