Your Expert Witness Issue No. 47 by DMMonline

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contents IN THIS ISSUE 7

Opening Statement

NEWS 8

Transparency rules come into force

MoJ calls for evidence on PI discount rate

UK scores high on anti-money laundering, but…

Criminal Bar fee increase announced by government

ADR: CJC working group makes its recommendations

Randox retesting: police chief delivers an update

Location of third ‘mega-court’ announced

Windrush report pans Home Office

BBC’s Gardner honoured by linguists

ROAD TRAFFIC ACCIDENT AND INVESTIGATION 15

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

DISABILITY ACCOMMODATION 16

When lives are shattered, they have to be rebuilt

BUILDING & PROPERTY 17

New consultation seeks view on commonhold

FORENSIC ACCOUNTANCY 18

Who are the experts you should NOT appoint?

Can I settle my dispute by arbitration?

TREES AND THE LAW 21

Spruce beetle is latest invader to threaten UK trees

CULTURAL, RELIGIOUS & ETHNIC ISSUES 22

Property issues in India and Pakistan: why it’s important to keep it in the family

A to Z WEBSITE GUIDE 23 Our A to Z guide to the websites of some of the country’s leading expert witnesses.

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

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MEDICAL ISSUES 25 Medical Notes

NEWS Hep C campaign targets those diagnosed before treatment was available 26 26 New review targets overprescribing 27 Gosport: doctors welcome whistleblower measures 29 Results of patient radiation incidents published 29 GMC ‘confident’ of no repeat of Alemi scandal 31 Doctors without legal representation face tougher GMC sanctions 31 Plans put forward to regulate medics’ indemnity 31 Welsh scheme welcomed by GPs HOT-TUBBING What you need to know before you step into the hot tub 33 CHOOSING THE CORRECT EXPERT There is no hierarchy of expert opinion, so choose wisely 35 35 Doctors’ defenders set down rules for experts

PSYCHIATRIC & PSYCHOLOGICAL ISSUES Government pledges reform following mental health review 37 38 Workplace mental health is demanding attention 39 Knowing your experts is an expertise in itself 40 CQC finds community mental health services on decline NOISE INDUCED HEARING LOSS Remember, remember – don’t stand near fireworks 41 41 Breakthrough reported in understanding ear cell maturation ORTHOPAEDICS Why is my fracture not healing? 43 ORTHOTICS AI meets 3D to improve patient analysis 44 44 Orthotic advance offers new hope

CARDIOLOGY Computer models will allow personalised heart treatment 45 PLASTIC, RECONSTRUCTIVE & HAND SURGERY Surgeons welcome 20,000 entries on breast implant registry 47 47 Photo collection conveys plastic surgery’s wartime origins OPHTHALMOLOGY Royal College responds to ‘incorrect lens’ report 49 COMPARTMENT SYNDROME Why all clinicians should beware compartment syndrome 51 www.yourexpertwitness.co.uk

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Opening Statement [IN THE 1970s the country was gripped by the spread of Dutch elm disease, a particularly virulent strain of

which had arrived in the UK from Canada in 1968 and which pretty much wiped out the entire elm population. More recently, the free and rapid movement of goods – including trees and other plants, but also the whole range of goods transported in timber packaging – has seen a procession of pests and other invaders reaching our shores. Legal measures are available to deal with outbreaks, such as that of the eight-toothed spruce bark beetle. • The open borders that characterise the world of the 21st century can also offer a ready series of arteries to a whole army of individuals intent on either funding terrorism or simply making a fortune from illegal activities. Money is now laundered across borders and vigilance is needed by jurisdictions to root out the launderers and bring them to justice. The UK has a good record of such rooting, according to a report by the international body that co-ordinates the response to threats to the financial system. As with everything these days, however, the praise is tinged with a marker that lack of investment is holding back certain elements of the effort. • Anti-money laundering measures form one of the core responsibilities of solicitors’ practices. Now, a whole raft of their activities are subject to rules on transparency. Solicitors must now publish information on their websites about the services they provide, the expertise they can offer and, crucially, what they charge for those services. • What people get for their money is on everybody’s minds these days – and what we get paid for our work is equally important. After much to-ing and fro-ing the MoJ and the Bar appear to have reached an accommodation on increased funding for the fees paid to criminal defence barristers. An extra £8m on top of the £15m increase originally mooted appears to have done the trick. • A piece of legislation that is also currently out for consultation is the setting of the discount rate for personal injury claims – a necessary consequence of the Civil Liability Bill when it receives Royal Assent. The level of the rate has a direct effect on the level of compensation for PI claims. That compensation can reach seemingly-astronomical levels when the injury has resulted in the victim needing specialist accommodation, or substantial adaptation of their existing accommodation. The setting of the level needed is a very special skill itself. • Dealing with the increasing complexity of legal matters has led to a massive investment in new court facilities. A series of mega-courts is planned to offer a range of services under one roof. The MoJ has turned to a little-regarded provision of the Anti-social Behaviour, Crime and Policing Act and proposes a massive increase in probate fees to contribute to the cost. It is a resurrection of a measure proposed last year but scrapped ahead of the General Election. The government indicated at the time it would be looking to re-introduce the measure at some point in the future, and took the opportunity of ‘burying’ the announcement in the cacophony of Brexit noise and fireworks. A House of Lords committee has cried ‘foul!’ • One of the most shameful episodes in our recent history has been the denial of rights to thousands of migrants to this country from Commonwealth countries, who were initially encouraged to come. In extremis that has even involved deportation. The so-called Windrush scandal has tainted Britain’s reputation – and the Home Office is still not doing enough to right the wrong. That is the conclusion of a report by the National Audit Office. q

Ian Wild

Ian Wild, Director of Business Development Your Expert Witness

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Transparency rules come into force [ON 6 DECEMBER the new transparency rules for law firms

regulated by the Solicitors Regulatory Authority (SRA) came into force and law firms are now occupied with finding their way through the regulations and complying with them. The new rules require firms to publish price and service information on their websites. They must also make information on their complaints procedures available online and they can now download and begin using the new SRA digital badge. Providing website visitors with personalised information confirming that a firm is regulated and outlining the protections that brings, the badge is expected to become a mandatory requirement next spring. December’s implementation of the transparency rules was first announced in June 2018, and further confirmed following Legal Services Board approval of the rules in August. All regulated law firms are required to proactively publish information on prices they charge and what these include, across a number of common services: For members of the public: conveyancing, probate, motoring offences, employment tribunals (claims for unfair or wrongful dismissal) and immigration (excluding asylum) For businesses: debt recovery (up to £100k), employment tribunals (defending claims for unfair or wrongful dismissal) and licensing applications for business premises. Confirming the implementation date in November, SRA chief executive Paul Philip said: “Publishing information on price, services and protections will not only benefit the public, but will also help law firms win new business. Research shows that people struggle to find clear information about the services firms offer and think using a solicitor is more expensive than it actually is.

“We are providing guidance and support for firms to help them meet the new requirements and make the most of the opportunities they bring.” Responding to the implementation of the new rules, Law Society president Christina Blacklaws said: “Many people seek legal advice at key moments in their life. Helping them make informed choices about the best way to resolve their legal problems is at the heart of our work. Few legal problems are one-dimensional. Individual circumstances shape each case and so the advice each client needs will vary. “Law Society research shows people’s priorities and decisions change as a legal situation escalates – the experience of their solicitor and regulatory protections were valued over cost the more difficult or complex an issue became. And the complexity of a case is not always apparent at the outset, so it’s not possible to foresee every contingency on day one. “Our advice to consumers is to make decisions about the legal services you use based on a balance of considerations. Price is of course important, but so also are the range and quality of services you get for your money, and the client protections offered by the provider.” Paul Philip was at pains to reassure solicitors that the SRA was not going to use compliance as a way of punishing firms. Speaking during the SRA compliance conference in Birmingham, he said: “We will send people lots of reminders and then be forced to take regulatory action for the tiny amount of people that don’t do it. It is not about giving people a hard time.” q

MoJ calls for evidence on PI discount rate [

THE Civil Liability Bill is awaiting Royal Assent. When enacted it will change the way the personal injury discount rate is set. In preparation for the first review of the rate under the new legislation, the government has published Setting the Personal Injury Discount Rate: A Call for Evidence. The responses to the Call for Evidence will help the Lord Chancellor in carrying out the first review of the rate under the new legislation. The Call for Evidence seeks up-to-date data and information on a wide range of topics relevant to the setting of the personal injury discount rate under the provisions of the Civil Liability Bill, including in particular investments available to claimants, investment advice provided to claimants, investments made by claimants and model investment portfolios. Responses must be made by 29 January, when the consultation will close. q

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UK scores high on anti-money laundering, but… [

THE UNITED KINGDOM has a welldeveloped and robust regime to effectively combat money laundering and terrorist financing. However, it needs to strengthen its supervision, and increase the resources of its financial intelligence unit. That was the conclusion of a Mutual Evaluation into the UK’s anti-money laundering activities by the Financial Action Task Force – the international body set up to combat money laundering, terrorist financing and other related threats to the international financial system. According to the FATF: “The UK is the largest financial services provider in the world. As a result of the exceptionally large volume of funds that flows through its financial sector, the country also faces a significant risk that some of these funds have links to crime and terrorism. This is reflected in the country’s strong understanding of these risks, as well as national AML/CFT policies, strategies and proactive initiatives to address them. “The UK aggressively pursues money laundering and terrorist financing investigations and prosecutions, achieving 1,400 convictions each year for money laundering. UK law

enforcement authorities have powerful tools to obtain beneficial ownership and other information, including through effective publicprivate partnerships, and make good use of this information in their investigations.” Despite that, however, the familiar albatross of austerity and lack of investment tarnishes the picture. The report says: “However, the UK financial intelligence unit needs a substantial increase in its resources and the suspicious activity reporting regime needs to be modernised and reformed.” The UK is praised for ‘…the outreach activities conducted by supervisors and the measures to prevent criminals or their associates from being professionally accredited or controlling a financial institution.’ However, the report continues: “The intensity of supervision is not consistent across all of these sectors and the UK needs to ensure that supervision of all entities is fully in line with the significant risks the UK faces.” Overall, it concludes: “The UK has been highly effective in investigating, prosecuting and convicting a range of terrorist financing

activity and has taken a leading role in designating terrorists at the UN and EU level. The UK is also promoting global implementation of proliferation-related targeted financial sanctions, as well as achieving a high level of effectiveness in implementing targeted financial sanctions domestically.” Responding to the report, Stephen Jones, chief executive of UK Finance – the body representing the banking and finance industry – commented: “The UK should always strive to be the safest and most transparent place for financial services firms to do business. “This evaluation report clearly recognises the UK’s role as a global leader in the fight against money laundering, which is underpinned by innovative public-private partnerships such as the Joint Money Laundering Intelligence Taskforce. “Banks already spend £5bn a year tackling economic crime, but there is always more to be done. That is why the finance industry strongly supports building upon the public-private partnership work with government and law enforcement to promote even more effective collaboration in the fight against crime.” q

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Criminal Bar fee increase announced by government [

THE GOVERNMENT has announced it will be spending an additional £23m on fees for criminal defence advocates following a consultation on the reform of the Advocates’ Graduated Fee Scheme (AGFS). Lord Chancellor David Gauke made the announcement at the Bar Council’s Annual Conference on 24 November, where he also committed to bringing forward a 1% increase on all fees to come into effect alongside the new scheme. The figure represents an increase of £8m on the original proposal of an additional £15m, put forward in August. The extra money is to be specifically targeted at junior advocates to support continued investment in the profession. The Lord Chancellor said: “Criminal defence advocates play a crucial role in upholding the rule of law, and it is vital that their pay adequately reflects the work they do in a fair and sustainable way. “We have acted on the views we have heard during our engagement with the Bar and will increase spending on criminal advocates’ fees by £8 million, bringing the total increase to £23m. “Alongside this, we are looking at how we can best enable people to resolve their problems in a modern justice system and are spending £1bn to modernise and reform our courts and tribunals system. This will make it more straightforward, accessible, and provide better value for the taxpayer. “The government is committed to working closely with the legal professions to ensure that criminal defence advocacy is fit for the modern age and open to all.” Responding to the announcement, the Chair of the Bar, Andrew Walker QC, said: “The Lord Chancellor’s announcement that there will be further funding for the Advocates' Graduated Fee Scheme, following the recent consultation, is welcome. So, too, are his comments about the future: about the scope to improve the way in which criminal defence advocates are paid, and his commitment to working together with the professions to make criminal advocacy sustainable. “To hear a Lord Chancellor emphasise the need to make criminal

practice sustainable, so that people from all backgrounds can enjoy a decent career doing such important work, signals what we hope will prove to be a critical moment in the Bar's relationship with the Ministry of Justice, not least because it shows that the ministry has listened to the concerns expressed strongly and resolutely by the Bar Council and the Criminal Bar Association about the effects of underfunding on the criminal Bar and access to justice. “We have been able to maintain a constructive dialogue with the ministry through a very difficult period, and we look forward to building on that in the discussions that lie ahead towards the further review of the AGFS to which the ministry is committed. Those discussions have already begun.” The government’s response to the consultation on reforming the AGFS was published on 10 December. In her introduction, Justice Minister Lucy Frazer said: “I know there will be continuing concerns about the structure of the AGFS, as well as broader concerns about payment for ‘work done’ under the scheme. We recognise that there is scope to further improve the way criminal advocates are paid and we are committed to considering these concerns more fully. However, doing so will take time and we want to ensure that advocates can benefit from the enhanced fees set out in this response as soon as possible.” q

ADR: CJC working group makes its recommendations [

A WORKING GROUP of the Civil Justice Council (CJC) has published a report making recommendations for alternative dispute resolution (ADR) – ways of resolving certain disputes that don’t involve going to court. In its Executive Summary, the working group commented: “People have spoken of our work as if it were only or mainly about the issue of compulsion to mediate. We disagree. The compulsion question is a central one but we have increasingly come to see the issues in relation to ADR as forming three distinct but related challenges: • The awareness of ADR, both in the general public and in the professions and on the bench • The availability of ADR, both in terms of funding and logistics and in terms of quality and regulation of the professionals involved • The encouragement of ADR by the government and courts.” Master of the Rolls Sir Terence Etherton, as chairman of the CJC, commented: “The working group is to be commended on producing an impressive report that proposes a number of reforms to the current system. “The group’s recommendations include the use of a judicial-

ADR liaison committee, increased public awareness of ADR, peer mediation in schools, increased law faculty and professional training, and a new website to act as a single umbrella source for information about ADR. “Work has already commenced on the creation of the judicial-ADR liaison committee, which will play an important oversight role in the area. The committee will report to me, as the chair of the CJC and head of civil justice in England and Wales. “The CJC fully endorsed the report at its last meeting, and we are very grateful to William Wood QC, the CJC member who chaired and led the group, and to the other members for the expertise they have brought to this fast-moving topic.” William Wood QC said: “These are not problems with single or simple answers. I am indebted to the working group for the time and effort that has gone into this report. We have done our best to set out what seem to us the most promising options for the future. “We are particularly pleased that our proposal for continuing liaison between judges and ADR professionals is already being acted upon by the Master of the Rolls.” q www.yourexpertwitness.co.uk

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Randox retesting: police chief delivers an update [FOLLOWING THE REVELATIONS of data manipulation at the

Randox Testing Services lab in Manchester, a team of experts identified that thousands of cases had been affected and a major national retesting programme was commissioned. The National Police Chiefs’ Council (NPCC), working with the Forensic Services Regulator (FSR), the Crown Prosecution Service (CPS), the Home Office and the Association of Police and Crime Commissioners (APCC), has identified more than 10,500 cases across 42 force areas that may have been affected by manipulation. To date, nearly 4,000 samples have been retested or submitted for retesting and 2,300 cases have been struck from the retesting process as they have been deemed unlikely to result in a change to the criminal justice outcome. Of the highest priority cases, nearly 90% – approximately 800 – of cases have been retested, with the rest to be completed by April. Of the 2,700 cases that have been fully revisited, outcomes were affected in only 90 cases. All 90 are road traffic cases, of which 50 were discontinued by the CPS and 40 had a conviction overturned following the case being reopened under Section 142 of the Magistrates Courts Act, which gives Magistrates’ Courts a power to reopen cases to rectify mistakes. Four additional road traffic cases have been taken to the Court of Appeal. One case was overturned, one resulted in a reduced sentence, one appeal was unsuccessful and the fourth is still to be decided. The NPCC has employed an independent expert to analyse the retest results, with more than 1,000 cases already being closely examined to ensure the quality and accuracy of the retesting work. The NPCC lead for forensics, Chief Constable James Vaughan, said: “The integrity of forensic science is a fundamental part of our criminal justice system and we are working tirelessly to minimise the impact of this serious breach of standards. “Managing the process for retesting over 10,500 potentially affected cases has been a major national police operation. We will continue this process until we can assure the public that we have retested samples in every case where it is necessary and possible.

“Unfortunately, the retesting process has been slower than we had either hoped or anticipated, as a result of the limited specialist and independent capacity within the forensic marketplace. Alongside the APCC and the Home Office, the NPCC are leading the work to bring other independent forensic testing suppliers into the supply chain to speed up the process. “We have requested that local forces and coroners review the relevance of toxicology to each affected case, so we can concentrate our efforts where they are most needed. That has succeeded in reducing the number of high priority cases, and has also led to around 2,300 cases being struck from the retesting process as they have been deemed unlikely to result in a change to the criminal justice outcome. “I expect this re-evaluation process to reduce the timescales for completing the retesting programme, but our conservative estimates are that all relevant road traffic cases will be complete by mid-2019, and all other cases where toxicology was pivotal will be done by December 2019.” q

Location of third ‘mega-court’ announced [

THE LOCATION OF the UK’s third Courts and Tribunals Service Centre (CTSC) has been announced as Crown House in Loughborough. The development is part of the £1bn transformation programme for courts and tribunals, making the justice system simpler to access, easier to use and more efficient to run, using technology to bring it into the 21st century. According to the Courts and Tribunals Service: “CTSCs will bring expertise together under one roof, improving and modernising processes to give users of the justice system a better, seamless service. They will enable people to access the support they need more quickly and easily in one place.” The first two centres – announced for Birmingham and Stoke-onTrent – are due to open early next year. Loughborough CTSC will hold around 200 people – bringing the total working across all three sites to around 1,000 – and is expected to be fully operational by May 2020, though justice services may start moving there by the end of next year. CTSCs will deal with all aspects of handling cases, including new applications, managing queries from the public and professionals, and supporting the judiciary in progressing cases and listing hearings. q www.yourexpertwitness.co.uk

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Windrush report pans Home Office [ON 5 DECEMBER the National Audit Office (NAO) published the

report of its inquiry into the handling of the so-called Windrush affair. The Home Office did not deliberately deny the Windrush generation their legal rights to be in the UK, the NAO says, but it failed to protect their needs when it designed and implemented its immigration policies. This has led to serious consequences for people affected. The report aims to provide transparency about what happened and what is being done now to help those affected and to prevent a similar situation happening again. The NAO found that, when designing and implementing compliant environment policies – previously known as the ‘hostile environment’ – the department did not sufficiently consider the potential implications this would have on those who might find it harder to prove their settled status in the UK. That included Windrush migrants who came to the UK between 1948 and 1973 and were given indefinite leave to remain. Many were not given documentation and the department kept no records. To date, the department does not know how many members of the Windrush generation have been wrongly impacted by policies designed to target illegal migrants, and the extent of the problems they have faced. It has set up a taskforce to help people resolve their immigration status which, by September, had received 6,589 calls from the Windrush generation and other eligible groups. To identify people affected, the department has narrowly focused on the files of 11,800 people from 12 Caribbean countries, based on the numbers of individuals who were granted status in the first month of its taskforce. The Home Office has no plans to review the files of around 160,000

Commonwealth nationals born before 1973, who may have also been wrongfully detained or removed. It believes this would be disproportionate, but the NAO says the department has insufficient evidence to come to the conclusion that other nationalities would not have been affected. Its own Windrush taskforce is open to people from countries outside the Caribbean. The department is setting up a compensation scheme. It expects to pay people from a wide range of countries for loss of employment or benefits, wrongful detention and removal, denial of access to public services and the impact on mental wellbeing. At this stage, the cost of the scheme is unknown. The NAO has made a number of recommendations to reduce the risk of a similar situation happening again. They include the department considering its responsibility to be more proactive in identifying people affected and developing a strategy to support potentially vulnerable people across the immigration system as a whole. It must also improve its approach to assessing risks to individuals and groups, before implementing policies. NAO head Amyas Morse commented: “The treatment of people who had a legitimate right to remain in the UK raises grave questions about how the Home Office discharged its duty of care towards people who were made vulnerable because of lack of documentation. “It failed to protect their rights to live, work and access services in the UK, and many have suffered distress and material loss as a result. This was both predictable and forewarned. The department is taking steps to put things right for the Caribbean community, but it has shown a surprising lack of urgency to identify other groups that may have been affected.” q

BBC’s Gardner honoured by linguists [THE BBC’S security correspondent Frank Gardner OBE was

presented with the David Crystal Trophy at the Chartered Institute of Linguists (CIOL) Awards Evening on 14 November at the Law Society in London. The David Crystal Trophy is presented to someone ‘for whom language has been a constant within their work and life and who

has used that knowledge to help or inspire others or to open up the world of languages to a wider audience,’ according to CIOL’s CEO Ann Carlisle. A graduate in Arabic from the University of Exeter, Frank Gardner chose to immerse himself in the language and culture of the Middle East. The award honours him as a champion of the Arab world, demonstrating how language and cultural knowledge can lead to tolerance and understanding. Ann Carlisle continued: “He is an inspiration as he continues his own journey of language and cultural discovery and will inspire others to follow his example.” Accepting the award, Frank said: “I am honoured to be awarded the David Crystal Trophy for using languages in my work. Languages are an incredible passage to another world. Learn a little bit in many languages and you won’t believe how far it will take you.” q

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

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

[INSTRUCTING AN EXPERT is sometimes

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

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

”

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

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

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

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When lives are shattered, they have to be rebuilt [

ON SOME OCCASIONS when very large sums are awarded in compensation for a personal injury claim it is because the injured party needs substantial adaptation to their home – or even needs to move to a new home. The amounts awarded can seem eye-watering and often lead to adverse headlines in the press – particularly when the award is medical negligence against an NHS trust and it is set against a picture of squeezed funding and soaring compensation claims.

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Law company PotterReesDolan can claim substantial experience in the field of representing people who need to completely rebuild their lives following injury, including either finding new homes or adapting their existing home, and have published a guide to the often-traumatic process. The guide says: “Perhaps understandably, many people see only the large headline figures of compensation awarded to individuals without realising what the money is to be used for or how hard everyone

New consultation seeks view on commonhold

“A disabled-friendly home to me should look spacious, with wider doorways to easily get from one room to another, with a wet-room so I can shower and use the loo in private.” involved had to fight to get it. Some people have even suggested that compensation is a ‘lottery win’. We know that this is not the case.” Another law firm with substantial experience in the field is Lime, which has offices in London and the Midlands. Again, they are aware of the substantial costs involved in adapting a home for use by someone who has suffered catastrophic injury. “An accident, injury or illness can severely restrict an individual’s ability to use their own home, resulting in significant disruption and a risk to the individual’s independence. At Lime we recognise how important it is for the injured individual to have changes made to their home environment and vehicles so that they can live day-to-day following an injury or illness in a comfortable and more independent way.” They list some of the adaptations that may be required, from seemingly simple pieces of equipment like grab rails, bath lifts, hoists and specialist seating to major building work including through-floor lifts, rebuilt kitchens, extensions to accommodate ground-floor bedrooms and even reconfiguration of the entire interior to allow for wheelchair use. In between there are such facilities as ramps, wet rooms and stair lifts. Charity Leonard Cheshire, which is campaigning for new homes to be built so they can be easily adapted to accommodate disability (so-called ‘lifetime homes’), point out that the adaptation must allow the disabled person the same facilities as if they weren’t disabled. “All pathways, hallways and doorways need to be wide enough for a wheelchair. Nobody can live with dignity if they’re unable to use their bedroom, bathroom or kitchen, or just can’t move from room to room.” They offer one person’s description of what a disabled person’s home looks and feels like. Sue writes: “A disabled-friendly home to me should look spacious, with wider doorways to easily get from one room to another, with a wet-room so I can shower and use the loo in private. I would like a bedroom where I can sleep, as opposed to now where I have to sleep in my lounge. “It should have a kitchen with lower cupboards and a sink at the right height, electric sockets should be at waist height, so I can use these things. It should have level access to the front door.” They describe the practicalities that have to considered, such as simply getting around: “This is important in the home but also outdoors in the garden and parking spaces. Doorways don’t just have to be wide enough to fit a wheelchair though: there needs to be space for a wheelchair to turn around.” And there are structural issues: “It’s essential that walls and ceilings are strong enough to fit supports and hoists where necessary. It should also be possible to install a level-access shower with controls within easy reach.” There is a range of skills and expertise to be deployed in arriving at a home that fits all the criteria. The need has to be assessed: that involves specialists such as occupational therapists. Following that, the cost has to be assessed and then the work has to be carried out. Again, specialist contractors have the expertise to advise the courts and then deliver the goods. q

[THE LAW COMMISSION has published a consultation on

reinvigorating commonhold as a fundamental part of its wider residential leasehold and commonhold project. The commonhold project is looking at aspects of the law that may be preventing its uptake. Commonhold was introduced in 2002 to allow a person to own a freehold ‘unit’ such as a flat within a building and at the same time be a member of the company which manages the shared areas and buildings. The current consultation makes provisional proposals to make commonhold work for homeowners, developers, mortgage lenders and across the wider property sector. In particular, the paper includes proposals that would: • Enable commonhold to be used for larger, mixed-use developments • that accommodate not only residential properties but also shops, • restaurants and leisure facilities • Allow shared-ownership leases and other forms of affordable • housing to be included within commonhold • Make it easier for existing leaseholders to convert to commonhold • and gain greater control over their properties • Improve mortgage lenders' confidence in commonhold, to increase • the choice of financing for home buyers • Provide homeowners with a greater say in how the costs of running • their commonhold are met • Enable homeowners to end unattractive long-term contracts • imposed by developers The consultation paper follows a call for evidence published in February that highlighted a number of issues with the current law of commonhold that may be making it unattractive to homeowners and across the wider property sector. The Law Commission will be holding a number of consultation events across England and Wales. At these events, it will discuss some of its proposals and ask for the public’s views. All those with an interest are invited to attend the events and help shape the final recommendations for reform. The closing date for the consultation is 10 March. q

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Who are the experts you should NOT appoint? When you the lawyer have sweated blood on an important case, you don’t want an ill-chosen expert to spoil all your good work. Here, forensic accountant CHRIS MAKIN – an experienced expert witness in a vast range of commercial, family and criminal cases – offers a checklist of the experts to avoid: 1: Does the expert spend all his time as an expert witness? If so, proceed with caution. A medical person who retires and seeks to supplement their pension with expert witness assignments may very quickly fall out of date. Similarly, other specialisms may need someone who actually does the job as well as propounding about it. Interestingly, accountants tend not to fall into that trap. I, for example, have been a full-time expert in litigation for 30 years, plus acting as a mediator and expert determiner. And I know many accountancy colleagues who similarly do nothing else. We keep up to date with training – and seeing the problems caused by incompetent accountants. [See also 5 below] 2: The expert requires an advance retainer far in excess of the initial work needed I find it quite arrogant of any expert to require a substantial first payment. Clients don’t sign blank cheques any more – if they ever did. Far better is the method I use: an initial review of any case, without obligation to instruct me and with no charge at all if the matter does not proceed. Thus, the instructing solicitor has no commitment to me and has incurred no fees with me until I have seen the key documents, provided a typed initial review of the case and said how much a report is likely to cost. That is good business for me, since in the vast bulk of cases my initial report shows that I understand the issues and leads to confirmed instructions. And on the rare occasions where I am not instructed, I don’t even sulk! 3: The specialist is difficult to reach If the specialist doesn’t return calls or emails…or if a secretary is protecting him from interruptions…or if you need to give 72 hours’ notice for a telecon – find someone else! Litigation can be fast-moving, as we all know, with tight deadlines. What if a Part 36 offer is about to expire and you need your accountancy expert to tell you if he thinks it is reasonable or not? I work alone. I answer the phone and you will get an answer from me within a few hours at the most. Of course, if I’m in court or doing a mediation it may be later in the day; but I appreciate the need for rapid access – and respect it. 4: How will your expert look to the judge? First impressions, in any situation, are vital. An expert who turns up for a conference with counsel in jeans and a dirty sweater, or even just without a tie, may think that is acceptable in a courtroom. It isn’t. Similarly, think carefully about whether the expert appreciates that their function is to assist the court on matters within their expertise – that is, to explain complex matters in a way intelligible to the informed layman, the judge or jury – or whether they consider that their function is to maintain the mystique of their profession. At client meetings or in

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conference, can you understand what the expert is talking about? If not, this isn’t the expert for you. 5: Does the expert have courtroom experience? [See also 1 above] When I first starting acting as an expert, many years ago, I often found myself ranged against an accountancy expert on the other side who didn’t have the first idea about what became CPR 35, FPR 25 or CrPR 33. They thought that their function was for their side to win at all costs, with their help. I feared that such dabblers could spoil the reputation of my cherished profession, so I joined the committee of the ICAEW Forensic Group and we worked for seven years to devise an accreditation scheme for forensic accountants and expert witnesses. I was in the first group to become accredited, and there are still only 100 out of the 145,000 chartered accountants who have gained this ‘kite mark’ – it’s stiff! So if you want a chartered accountant who knows what he is doing in this second profession of being an accomplished expert witness, this is the snappy address to put in your browser: www.icaew.com/abouticaew/find-a-chartered-accountant/find-an-accredited-forensic-expert. Or just Google ICAEW forensic accountant and look for ‘Register’. You will find a list of specialisms, with a list of those of us who have reached this high standard. 6: What is in the expert witness’s adverts? If there is any suggestion in the wording of helping you to win cases, or even of ‘gun for hire’, beware! I remember an orthopaedic surgeon who regularly lectured while dancing with a skeleton, and convinced defence solicitors and insurers that whiplash did not exist. Unsurprisingly, he acted only for defendants and he was very busy. But of course he became tainted, and such experts now have no place in the courtroom. Look for an expert who acts in broadly equal measure for claimants and defendants or, increasingly in family matters, as a Single Joint Expert. Hot tub experience is good, too. And look for an expert who can take the balanced view. I, for instance, act as a mediator and as an expert determiner. I can usually pinpoint the strengths and weaknesses of a case, which puts me in a good position to discuss with you whether to run the case, or how to settle on best terms. 7: Does this expert act only for claimants or for defendants? [See 6 above – not sensible] Also, see what the expert has added to the literature. Have they, for example, taken a strong line in an article published in the legal press, yet are attempting to take the opposite line on your case with similar facts? That could be very embarrassing when the expert comes to be cross-examined. Do your research now, and avoid such problems. Google the expert’s

name and see what they have put on their website. I, for example, have a series of blogs and a long section on the sorts of cases on which I have worked – for both sides. Why not have a peep? My website even has videos! 8: Check the expert’s disciplinary record and any reported cases This can be another trap in cross-examination. If the expert has been found wanting by his peers, avoid him. And if he has been criticised by a judge, a fortiori! One of my duties is to sit on the Investigation Committee at the Academy of Experts. In a recent case a judge had severely criticised an expert, so that matter came to us. There were two sides to the case, and of course the expert has no right of reply to a judge’s criticism – but it is on record. We advised the expert that he must tell all solicitors who now approach him that he has been criticised by a judge, but that he has undertaken additional training so that it doesn’t happen again. Maybe he will not receive the same number of instructions, but far better that than his next case collapses when he is cross-examined by the opposing side, who have done the same homework which you should have done when choosing your expert. 9: The expert changes his mind between initial opinion and testimony This can be very nasty. Limit the risk by giving your expert full information at the earliest opportunity. And if he still lets you down, use others in future. But, as for the expert who changes his opinions when other evidence shows that he should reconsider them, give that expert the respect he deserves. 10: Match your expert’s speciality or sub-speciality with that of his opponent An important stage in civil litigation is the joint meeting of experts and I prepare for such meetings just as carefully as for a trial. But if the

opposing experts are from different professions, or have specialised differently, that can be a great waste of time. For example, while I profess expertise on many aspects of accountancy and on business generally, I have not been a registered auditor for many years: so there is no point in asking me to apply the Bolam test in an auditor’s negligence case; and I would tell you so as soon as you approached me. There are so many sub-specialisms in many professions that it is essential to choose the right one – no point in choosing an expert in the follicles of the left nostril if the case is about the right nostril! So think very carefully about what are the areas of your case needing expert opinion, and make sure you get the right expert for the job. I hope this helps. And good luck with your future cases. q

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

experience, firstly as a general practitioner and then for well over 20 years as a forensic accountant and expert witness. He is also the former National Head of Litigation Support in a national firm. He acts frequently for claimants/applicants, defendants/respondents and as a single joint expert and has given expert evidence over 100 times. For many years Chris was a contributor to the Kemp & Kemp publication The Quantum of Damages. His chapter on Loss of Profits for the Self-Employed & Family Company Director is an admirable summary of how businesses work and is of benefit to lawyers in many fields, 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 doesn’t proceed, he makes no charge. He destroys the papers and he doesn’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. Chris’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 – including some where the parties even refused to sit in the same room at the start – yet his personal settlement rate is running at about 80%. Chris Makin might just be the mediator who could help you and your clients to resolve even the most difficult litigation cases. As a mediator he has dealt with many types of disputes, including business purchase and sale, partnerships, contractual failings and professional negligence – all the kinds of dispute you would expect an accountant to be able to help with. But he has also mediated in disputes in the fields of construction, sub-contracting, rights of way, boundaries, 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 difficult area. q

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Can I settle my dispute by arbitration? By DAVID BUNKER, Chartered Accountant, Arbitrator and Mediator

[ARBITRATION IS A marvelous method for resolving disputes â&#x20AC;&#x201C;

both UK-based and international. It combines a degree of flexibility with technical complexity, so that important and arcane issues can be argued about, explained and decided upon in a way that a conventional court hearing would find very difficult to match. However, it is not available for all disputes, and here I am going to consider some of the preliminary steps. The most fundamental condition is a prior agreement between the two parties that, in the event of a future disagreement, the matter can be referred to arbitration. The parties cannot agree to go to arbitration in retrospect. A partnership agreement, for instance, will very often have a dispute resolution clause to the effect that any dispute arising between the parties as to the application or effect of the agreement may be referred to arbitration. Such clauses are often very widely drawn, so as to encompass any subsequent dispute arising. Often the dispute resolution clause includes a stipulation as to who will select the arbitrator. An agreement may, for instance, specify that either party can apply to the Law Society or a similar professional body, for them to nominate an appropriate individual to act as arbitrator. If no appointing body is specified, it is up to one of the parties themselves to research an appropriate person who is willing to act. It is generally the case, though not always so, that one party to a dispute takes the initiative in approaching an arbitrator. Before doing so it is worth pondering the significance of taking such a step. An arbitrator is not simply

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an expert who can provide one party, or indeed both, with some advice: an arbitrator is vested by statute with the legal power to determine the dispute and to make awards against one side or another. There is no question, as there is with an expert, that one party may appoint someone, not like the advice received and dispense with their services. When one party has opted to appoint an arbitrator the other party has the option to object. The grounds of the objection are generally that there is no valid arbitration agreement, or that such agreement as there is does not cover the issue presently in dispute. If there is such an objection, the arbitrator will initially consider the case as presented by both sides and rule on the validity of his own appointment. Once appointed, the arbitrator will make it very clear to both parties that he is even-handed and will not let any initial dispute about the validity of his appointment influence his decision about the substantive matters in dispute. The appointment of an arbitrator is a substantial step to take in any dispute: firstly, the appointment will bring about a stay in any court proceedings that may have commenced; secondly the arbitrator has the power to make a decision in the dispute which is legally enforceable and very difficult to overturn. In many cases it will mean that the fair resolution of the matter in dispute has been passed to someone who is technically competent and who will make sure that each party has a proper opportunity to explain their case before an independent, professional person â&#x20AC;&#x201C; in a way that would be unlikely in a conventional court setting. q

Spruce beetle is latest invader to threaten UK trees [

THE FORESTRY COMMISSION is urging woodland managers, landowners, the forest industry and tree nurseries that supply mature conifer specimens to remain vigilant after it identified a breeding population of the eight-toothed spruce bark beetle (ips typographus) in Kent. The discovery was made as part of routine surveillance activity and the beetles were discovered in a woodland setting. The government contingency plan has been initiated and the Forestry Commission has been designated the competent body for the outbreak. Movement restrictions have been served on-site to minimise the risk of onward spread, while further investigations and surveillance of the area is conducted. Adult beetles will be dormant and hibernating during the winter. The eight-toothed spruce bark beetle does not affect human health, but can be a serious and destructive pest of the spruce tree species across Europe – although it generally prefers weakened or damaged trees. It has never been discovered in the wider environment in the UK before. Smaller spruce trees (less than 15 years old), including domestic Christmas trees, are too small to be susceptible to infestation and very unlikely to be affected by this finding. Nicola Spence, the UK’s chief plant health officer, said: “An outbreak of the eight-toothed spruce bark beetle in an area of woodland in Kent has been confirmed. We are taking swift and robust action to limit the spread of this outbreak as part of our well-established biosecurity protocol used for tree pests and diseases. “I encourage anyone who suspects a sighting of the bark beetle to report it to the Forestry Commission on the Tree Alert portal.” Caroline Ayre of the Confederation of Forest Industries, which represents the UK forest and timber industry, added: “The discovery of this outbreak is of great concern to the UK forest industry. It is essential that everyone is vigilant and we work with the Forestry Commission to help bring this outbreak to a swift conclusion.” The outbreak follows measures to limit the spread of the oak processionary moth earlier this year, which included restrictions on the import of most species of oak into England. In recent years there have been alerts regarding ash die-back. Damage to trees, woods and forests in the UK from insect pests and organisms such as bacteria and fungi is significant. The rapid increase in movements of goods and people between countries has increased the risk of spreading pests and diseases. They can travel hidden in plants, plant products, packaging, wood, vehicles and holidaymakers’ luggage – even in the soil carried on shoes. As well as causing economic losses for the forestry, timber and plantbased industries, they can disrupt other sectors such as tourism and threaten woodland biodiversity, ecosystems and native species. There has been a significant increase in the number of these nonnative tree pests and diseases being introduced to the UK since the early 2000s. People working in the arboriculture, forestry and landscaping industries are considered a particularly high-risk group for their potential to spread tree pests and diseases. Those responsible for importing or moving plants should check plant passport and registration requirements with the Animal and Plant Health Agency (APHA) before doing so, and source landscaping materials only from pest and disease-free areas. They should be aware of any restrictions in place, or phytosanitary (plant health) measures and treatments required when importing certain materials or their packaging.

By specifying British-grown plants they could avoid being party to an accidental introduction of a pest or disease. When working on a site that is subject to a Statutory Plant Health Notice (SPHN), or where a pest or disease has been confirmed, they must also follow any additional biosecurity guidance for that pest or disease. SPHNs requiring eradication may require measures to kill the infected or infested trees, such as by felling or ring barking. SPHNs ordering containment measures may allow the infected or infested trees to remain standing, but require any susceptible material to remain on site. q

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Property issues in India and Pakistan: why it’s important to keep it in the family 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 FAMILY HOME, where ancestors have lived

for generations, has always been considered sacred by families in India and Pakistan – and not for sale. The father or grandfather would transfer it to his eldest son or grandson as ‘varisti’, or family honour inheritance. He would then own it legally on the Land Registry, spend money on maintaining and repairing it, but could not benefit financially. That is a strict cultural tradition. On the death of the father or grandfather, the property is divided equally among all the brothers and sisters, with the eldest son only getting the same share as all the other siblings. Each may then sell their share – but only to each other, not to an outsider. If, in dire circumstances, inherited property were to be sold, it brings grief to the whole family. Moreover, the eldest brother is expected to look after all the family financially: akin to social services in the UK. As an impartial expert witness in England since 1992, I have been asked on occasion to act as a single joint expert, which I consider an honour. In some cases I have explained these aspects of the unique Indo-Pakistani custom, to assist the judge and jury when they are dealing with a divorce case involving a migrant South Asian (Indo-Pakistani) couple or a second-generation British Asian couple. This holy custom may be new information for British courts and lawyers and I hope they find it useful. So, why do Indo-Pakistani elders transfer the family home to their eldest son while still living in it, and not keep it registered in their own name? I learned from my own elders that it is because elderly Indo-Pakistani men are more vulnerable to a number of factors than their sons. For example, property taxes levied by their own government may increase with age and circumstances – or tax officers may have their own tribal or religious prejudices. There are also a number of factors which may result in unexpected death among the elderly, including: • Disease: sometimes antibiotics are not available or are very • expensive • Alternative medicines or religious prayers: there can be advantages • and disadvantages in their use • Accidents: perhaps caused by an old building or unrepaired roads • Tribal friction: tension is often passed on down the generations and • can lead to fights • Religious disputes: there are many religions and cults with different • beliefs and customs. Prejudices are often regional and change • with time • Political factors: even involving an attack by a foreign government, • as for example by the US on Bin Laden in Pakistan. The sending of • drones to kill enemies is also an increasing trend. Another relevant cultural point is that in South Asian countries, when a couple argue, they may threaten to divorce each other in anger. Some relatives (especially the mother-in-law) may overreact. If the couple have children, a divorce would be very harmful to them. When they calm down, the husband and wife may both regret the

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decision to divorce – but by this time they often stick to their threat for fear of losing face among relatives. It is a lawyer’s responsibility to guide their client through all of the available options, and I often advise that they suggest mediation – the couple may eventually be grateful to the mediators. In India and Pakistan, mediation is often carried out by religious priests, who donate the money earned to their place of worship. Finally, communication skills vary with upbringing and education. Those skills are less developed in some parts of South Asia and for that reason there are more court cases. Some things people could have talked about with each other are dealt with by lawyers and the courts. However, there is another cultural custom whereby some marital or family disputes are mediated by a ‘panchayat’ – a mutually-elected, unpaid committee of five friends or neighbours. Although this is done out of court, some courts accept their decisions. q

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 Kim Hakin FRCS FRCOphth Translations and Interpreting for the Legal Profession since 1997. Specialists in Personal Injury and Clinical Negligence.

Consultant Ophthalmic Surgeon and Expert Witness on ophthalmological matters

www.abc-translations.co.uk

www.kimhakin.com

Mr Antony M. Visocchi

Dr Lars Davidsson MRCPsych MEWI

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

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

www.dentalexpertwitness.co.uk

www.angloeuropeanclinic.co.uk

Mr Chris Makin

Mr Marcus Ornstein

• Chartered Accountant • Accredited Civil Mediator • Accredited Expert Determiner

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

www.chrismakin.co.uk

www.marcusornstein.co.uk

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

Professor Parviz Habibi MB ChB PhD FRCP FRCPCH

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

Consultant in Paediatric Intensive Care & Respiratory Medicine. Specialist in treating respiratory conditions and sleep disorders as well as paediatric intensive care.

www.expertinmind.co.uk

www.childrensrespiratorydoctor.co.uk

Dr Gerry Robins MBBS FRCP MD PGCLTHE

Dr Rowland James Whale MBBS MRCP(UK)

Consultant Gastroenterologist Full medico legal service in all cases relating to gastroenterology

Consultant Physician and Geriatrician • Elderly claimants • Medical negligence • General medical issues • Personal injury

www.drgerryrobins.co.uk

www.drwhale.co.uk

The Hampden Consultancy

Drilling Expert Legal Services

Consulting Engineers • Mechanical & Electrical Services We can be appointed as Expert Advisers, Party-appointed Experts or as Single Joint Experts

Mr Steve Devereux CEng ACIArb • Well engineering • Onshore & offshore drilling • Drilling rigs & operations

www.thehampdenconsultancy.com

www.drilling-expert.legal

Mr Jeremy P Crew MA MD BChir FRCS

Dr Thomas C M Carnwath

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

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

www.oxfordurology.co.uk

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

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MEDICAL NOTES [WHAT SEEMS TO BE a conveyor belt of scandals in NHS trusts has tipped up its latest passenger – this time

in form of the goings-on at Gosport War Memorial Hospital in Hampshire – albeit nearly two decades ago. The investigation into 800 deaths at the hospital in the 1990s concluded that at least 450 lives had been shortened by ‘inappropriate use of opioids’. It proved all-too-easy for hospitals to be run with the ethos of patient management rather than care and Gosport fell into that trap. And the prevailing structure of authority made it almost impossible for any individual to voice concerns. The government’s response to the investigation includes measures to protect whistleblowers and ensure management learns from the past. The move has been welcomed by doctors’ representatives, but…haven’t we heard all that before? • The Gosport affair – and those at Stafford and Barrow etc – illustrates the extreme of callous management. Most medical incidents, however, confound the meticulous care taken by healthcare professionals. Accidents such as the insertion of the incorrect intraocular lens during a cataract operation fall into that category. Fortunately, according to the Royal College of Ophthalmologists, the result is rarely catastrophic, as most instances involve inserting a lens designed for the other eye. Similarly, accidental exposure to ionising radiation sounds sinister, but can simply be too large a dose of X-rays. Nevertheless, the Care Quality Commission carries out an annual survey of reports. • Where there is an incidence of clinical negligence, there is naturally the issue of redress – usually in the form of compensation. It is a condition of practice that a healthcare professional has some kind of professional indemnity cover, but in some instances that cover may not be fit for purpose. Now there are proposals for the bringing of that cover onto a regulated footing. A scheme recently introduced in Wales is proving popular. Moreover, information gleaned by a leading medical defence provider shows that doctors who do not have legal representation at GMC or GDC hearings often suffer a worse fate than those who do. • When things do go wrong and a case goes to court it is essential that an expert witness whose testimony is called upon is the right person to ask. A recent case reported by law firm Stewarts demonstrates that it is not always the eminent professor whose expertise is to take precedence. Particularly when assessing disability, it is often the practitioner on the ground who has the clearest viewpoint. • The area of healthcare that has been uppermost in debate recently is mental health. Long the object of stigma and even ridicule, mental illness is still the Cinderella of healthcare when it comes to funding. Those of good will are taking steps to put that right; there appears to be a plethora of weasel words on the subject, however. A hopeful sign is a promise from the government to take on board a number of recommendations from a review of the Mental Health Act 1983. Patients are to be taken more seriously in future before they are detained and are to have more say in their treatment. For most people with mental health problems, however, the drastic step of detention doesn’t apply. And for many the provision of mental health services is still woefully inadequate. • What no-one with a mental health problem wants, though, is a psychiatrist who isn’t even qualified. Such a one was Zholia Alemi, who tried to swindle an elderly patient by altering her will. It was only after she was caught that it emerged she had lied about having medical qualifications from New Zealand and slipped through the net. The GMC has taken measures to ensure it doesn’t happen again. q

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Hep C campaign targets those diagnosed before treatment was available

[

PUBLIC HEALTH ENGLAND (PHE) and NHS England have launched a national exercise to identify and treat patients who have been previously diagnosed with hepatitis C. In recent years new, potentially curative treatments have been developed for hepatitis C, but tens of thousands of people who were diagnosed in the past may not have accessed them. A new report by PHE – the first of its kind – shows more than 24,500 people in England have accessed new hepatitis C treatments in the past three years. It also established that 95% of people who received and completed hepatitis C treatment in that period have been cured of the serious and potentially life-threatening infection. That is primarily due to effective new direct-acting antiviral medication which became available on the NHS in 2015. Two years ago, the UK government committed to a joint ambition with 193 other countries to eliminate the disease as a major public health threat by 2030. As well as testing and treatment, prevention through needle and syringe exchange services and opiate substitution therapies need to be sustained to achieve and maintain elimination. If untreated, infection with hepatitis C can lead to liver damage, cancer and even death. Hepatitis C is spread through blood-to-blood contact, most commonly in England by sharing needles contaminated with the virus, but even sharing razors or toothbrushes with an infected person could pass on the virus. A large majority of those treated (70%) report injecting drugs as their likely risk for acquiring hepatitis C. Treatment is also reaching other groups at increased risk of infection: 11% of those receiving treatment were of Asian ethnicity and almost a third were born outside the UK. Dr Helen Harris, clinical scientist at PHE, said: “Hepatitis C is a serious infection and

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therefore we are delighted to see that at least nine in 10 people who have completed treatment in England have now been cured. This is fantastic news; and a step towards eliminating hepatitis as a major public health threat by 2030, as knowing the numbers accessing treatment is vital to tackling the infection. “We will, however, continue in our endeavours to find and treat everyone who is living with hepatitis C. If you have been at risk of contracting hepatitis C, particularly through injecting drugs, even if you injected only once or in the past, then I urge you to get tested to see if you would benefit from these new, effective treatments.” Often, people with the infection do not have any specific symptoms until their liver has been significantly damaged. Many people do not know they have the infection; and when symptoms do occur they are often mistaken for other conditions, resulting in

many people remaining undiagnosed. Rachel Halford, chief executive of the Hepatitis C Trust, said: “We have an extraordinary opportunity to eliminate hepatitis C in the near future, if we can ensure all those living with the virus are treated with simple, curative treatments. “We know that many people who were previously diagnosed were never treated, and might be unaware that new treatments are now available. This re-engagement exercise will help ensure everything possible is being done to find, treat and cure those infected and move towards elimination by 2030.” If someone thinks they have been at-risk of catching hepatitis C, PHE recommend they get tested at their local GP practice, sexual health or community drug services. If people aren’t sure about whether they are at risk, they can take a short quiz on the Hepatitis C Trust website to find out if they should get tested. q

New review targets overprescribing [

HEALTH AND SOCIAL CARE SECRETARY Matt Hancock has ordered a review into overprescribing in the NHS. This review will focus on patients who take multiple medicines, and is aimed at ensuring patients receive the most appropriate treatment for their needs. The review will be led by Chief Pharmaceutical Officer Dr Keith Ridge and will look at: • Addressing ‘problematic polypharmacy’ – where a patient is taking multiple medicines • unnecessarily • Creating a more efficient handover between primary and secondary care, for example • ensuring GPs have the data they need and feel able to challenge and change prescribing • made in hospitals • Improving management of non-reviewed repeat prescriptions – including encouraging patients to • ask questions about their treatment to ensure they don’t remain stuck on repeat prescriptions • which are no longer needed • The role of digital technologies in reducing overprescribing • The increased role for other forms of care, including social prescribing Health Survey for England, 2016 found that nearly half of over 75-year-olds surveyed were taking five or more medicines, with the percentage rising the older people get. While in the majority of cases patients will be receiving multiple drugs due to specific or complex needs, the review will look at how to ensure treatment remains up to date and appropriate, so patients feel as well as possible. q

Gosport: doctors welcome whistleblower measures [

DOCTORS HAVE WELCOMED a series of measures to help NHS whistleblowers and improve probes into poor care, following a review of hundreds of deaths at the Gosport War Memorial Hospital. The measures were unveiled by health secretary Matt Hancock in November as part of the Government’s response to the investigation of 800 deaths at the Hampshire hospital between 1987 and 2001. The Gosport Independent Panel, which is carrying out the review, reported in June that at least 450 lives had been ‘shortened by inappropriate use of opioids’. Mr Hancock spoke of the ‘preventable deaths’ and the ‘repeated failure of multiple parties to listen to whistleblowers, nurses and families’. “Those with the courage to speak up will be celebrated,” he told Parliament. “Leaders must change the culture to learn from errors and we must redouble our resolve to create a health service that will be a fitting testament to the Gosport patients and their families.” The measures include the establishment of a ‘medical examiner’ to scrutinise all deaths not being investigated by coroners.

Confidence to complain

The creation of the role has been supported in principle by the BMA and was referenced in its response to the Leslie Hamilton review of gross negligence manslaughter and culpable homicide, commissioned by the GMC. BMA council chair Chaand Nagpaul said many doctors have little or no confidence in raising concerns for fear of not being listened to and the effect it may have on their careers.

“Doctors experience challenges of trying to provide safe patient care when there is poor staffing, gaps in rotas and where a persistent culture of blame stifles learning and discourages innovation. So the new legislation announced by the health secretary today must take account of the impact that culture is having.” Creating a medical examiner role was ‘a step in the right direction’ for patient safety, he added. “But we need to see the detail of how these posts will be staffed, funded and how they will work across both secondary and primary care. “The BMA now wants to see the health secretary’s commitments to an NHS that promotes learning, rather than blame – and listens to patients and their families and staff concerns – enacted, with tangible results that deliver real benefits to patients and to staff.” The government’s response to the Gosport report begins with the statement: “The Gosport Independent Panel has made us see with great clarity a terrible and shameful episode in our history. To read the panel’s report is to understand how doctors, nurses and leaders in healthcare – those we most want and need to trust – can fall away from acceptable standards of practice, with awful consequences for patients. “The report also describes with quiet anger the many struggles and frustrations of the families of those who died at Gosport. For the families, the panel's report marks an important milestone rather than an end point, and while the government cannot express a view about any subsequent process that may take place, we would like this response to be, in part, a tribute to the Gosport families and those who have supported them for their resilience, perseverance and courage in the face of many obstacles and delays.” q

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Results of patient radiation incidents published [

THE CARE QUALITY COMMISSION’S annual report on enforcement of the Ionising Radiation (Medical Exposure) Regulations in England has been published. The report gives a breakdown of the number and type of notifications the CQC received from healthcare providers of patients being exposed to radiation – either when it was unintended or when they received a higher dose than intended – during the 2017 calendar year and the first quarter of 2018. In the reporting period the CQC received 1,226 notifications of incidents. That is in the context of around 40 million procedures carried out on patients during the 2017/18 financial year. Although notifications relate to errors and incidents where there is risk of harm to patients, the majority of over-exposures do not result in harm. In 2017, the number of notifications decreased by 28% compared with the number received during 2016. However, that is not thought to be due to improving practice, but is a result of changes introduced in January 2017 to the guidance about the type of incidents that need to be notified to CQC.

Of the notifications received, 975 (80%) were from diagnostic radiology departments. A further 94 were from nuclear medicine and 157 notifications were from radiotherapy departments. The report also presents the key findings from the CQC’s inspections of departments – either in reaction to a notification or concern, or as part of a programme of planned inspections – alongside details of enforcement activity in that area. Professor Ted Baker, CQC’s chief inspector of hospitals, said: “It is important that organisations learn from incidents and take action to mitigate the risks of repeating errors, to protect patients from risks when they are exposed to radiation from x-rays, radiotherapy or radiopharmaceuticals as part of their diagnosis or treatment. “Many errors happen simply because of poor communication and unclear responsibilities. We want this report to remind clinical departments of the importance of a strong safety culture, including carrying out essential safety checks. I hope that they will learn from the examples in this report to ensure they provide safe services to patients.” q

GMC ‘confident’ of no repeat of Alemi scandal [

FOLLOWING THE REVELATION that New Zealand-born Zholia Alemi was practising in the UK fraudulently, the General Medical Council issued a statement. The deception came to light after Alemi was found guilty and jailed for falsifying the will of an elderly patient in order to inherit her estate. She had come to the UK in 1995 claiming to have qualified from the University of Auckland – a claim that turned out to be false. Charlie Massey, chief executive of the GMC, said in the statement: “We recently became aware that Zholia Alemi used a fraudulent qualification to join the medical register in 1995 and worked as a doctor until June 2017. These are serious issues and we are investigating them urgently to understand how this happened. We have brought this

to the attention of police and other agencies, including NHS England, so that they may also take any necessary action to support patients and answer any questions they may have. “Our processes are far stronger now, with rigorous testing in place to ensure those joining the register are fit to work in the UK. It is clear that in this case the steps taken in the 1990s were inadequate and we apologise for any risk arising to patients as a result. We are confident that, 23 years on, our systems are robust and would identify any fraudulent attempt to join the medical register. “Patients deserve good care from appropriately qualified professionals and place a great deal of trust in doctors. To exploit that trust and the respected name of the profession is abhorrent.” q www.yourexpertwitness.co.uk

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Doctors without legal representation face tougher GMC sanctions [

THE RESULTS OF a Freedom of Information request by the Medical Protection Society to the General Medical Council (GMC) demonstrate how important it is for doctors to have legal support when faced with a GMC investigation and a subsequent hearing. Over three-quarters of doctors erased from the register following a Medical Practitioners Tribunal Service (MPTS) hearing between March 2015 and March 2018 did not have any legal representation. On the other hand, 80% of those who did not receive a sanction and were able to continue to practise had legal representation. The situation is even more stark for doctors facing an Interim Order Tribunal (IOT): nearly nine out of 10 doctors who had legal representation had no order imposed, while over three-quarters of those suspended did not have legal representation. GPs without legal representation fair particularly badly. The vast majority of GPs (84%) who were erased from the register as a result of a Medical Tribunal hearing had no legal representation, whereas nearly all GPs (91%) who did not receive a sanction had legal representation. Nine in ten (93%) registered GPs who had legal representation had no order made against them after an IOT. Most of the doctors who appear before an MPTS hearing with legal

representation are provided with that support as part of their membership of a medical defence organisation. For other doctors, who would have to personally pay for this legal support, the cost can be prohibitively expensive. It is not unusual for the cost of defending a doctor to exceed £80,000 when a GMC investigation leads to an MPTS hearing. Rob Hendry, medical director of Medical Protection, said: “Medical Protection understands how traumatic being under investigation by the GMC can be for a doctor. Fitness-to-practise proceedings can have career-ending implications for the doctor; but many have told us that, even when acquitted, the investigation and adjudication process itself was the real punishment. Medical Protection provides high quality support to its members from the moment a complaint is received by the GMC, to its conclusion at the MPTS.” The report by Medical Protection comes in the wake proposals from the government for the regulation of professional indemnity for medical practitioners. Rob Hendry continued: “These figures from the GMC are a powerful reminder of how important it will be for GPs to continue membership of a medical defence organisation. The new state-backed indemnity scheme will not provide assistance with GMC inquiries or complaints, inquests and disciplinary proceedings.” q

Plans put forward to regulate medics’ indemnity [

ON 6 DECEMBER the Department of Health and Social Care launched a consultation into ‘appropriate clinical negligence cover for regulated healthcare professionals and strengthening patient recourse’. Currently, all healthcare professionals who wish to practise in the UK are legally required to hold appropriate clinical negligence cover for the costs of claims and damages awarded to patients arising out of negligence. There are, however, concerns that the current arrangements held by healthcare professionals who are not covered by state-backed schemes could prevent patients getting appropriate compensation

Welsh scheme welcomed by GPs [A NEW indemnity scheme for GPs in Wales has been welcomed

by doctors in the principality. The scheme will provide ‘greater stability and certainty’ for doctors, the Government said. BMA Welsh GPs committee chair Charlotte Jones said: ‘The proposed scheme will address one of the biggest financial pressures on GPs and will help enable all GPs, practice teams and wider cluster healthcare professionals to work more closely together taking forward the transformation of Welsh primary care.” Health secretary Vaughan Gething also announced that NHS Wales Shared Services Partnership has been chosen as the preferred partner for the new state-backed indemnity scheme, which will begin in April. The same organisation already indemnifies GPs working out of hours. Mr Gething said the Future Liability Scheme would be aligned as far as possible to the one announced in England and would ensure GP recruitment and cross-border activity was not adversely affected by different schemes operating. He said the scheme would include clinical-negligence liabilities arising from the activities of GP practice staff and other medical professionals such as salaried GPs, locum GPs, practice pharmacists, practice nurses and healthcare assistants. q

and put healthcare professionals at risk of being personally liable for the costs of claims. That is because these arrangements are mostly discretionary, where the providers are not contractually obliged to meet the costs of any claim and are not subject to prudential or financial conduct regulation. The DHSC identified groups that are likely to be most affected by any changes to the current indemnity arrangements as: • Regulated professionals in the NHS who hold indemnity cover • which is not currently regulated, such as primary care dentistry • Private practices of medical doctors and other regulated healthcare • professionals • Healthcare professionals in Northern Ireland and Scotland who are • not covered by any state-backed indemnity scheme, such as GPs. The consultation offers two specific alternatives: leave arrangements as they are; or change legislation to ensure that all regulated healthcare professionals in the UK not covered by a state-backed indemnity scheme hold appropriate clinical negligence cover that is subject to appropriate supervision – in the case of UK insurers, by the Financial Conduct Authority and Prudential Regulation Authority. The consultation closes on 28 February 2019. q

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What you need to know before you step into the hot tub ‘HOT-TUBBING’ – the process of expert witnesses from the same discipline providing concurrent expert evidence and being crossexamined (as set out in Para 11 of CPR Practice Direction 35) – is becoming more widely used. It also involves the parties’ experts engaging in discussion together while in the witness box. Dr Chris Danbury MB BS M Phil FRCP FRCA FFICM, consultant intensive care physician and expert witness, has been instructed in cases reaching the High Court, Court of Protection, Coroner’s Court, Court of Appeal and Supreme Court. Here, he shares his experience of ‘hot-tubbing’ and explains how expert witnesses and counsel can best prepare, and be prepared, for a judge-led joint examination. Expect the unexpected

For many expert witnesses the courtroom is not a familiar environment. Any expert worth their salt will have attended training in courtroom skills, with the focus historically on giving their testimony confidently and clearly under cross-examination. It can then be daunting to arrive at court to be told that the judge has given a direction for ‘concurrent expert evidence’ or a ‘hot tub’. On the face of it, it doesn’t change the preparation an expert witness should

and would do – although a thorough knowledge of current reviews and meta-analysis on the specific topic in hand will stand an expert in good stead in a ‘hot tub’. For legal counsel, providing the expert with forewarning gives a firsttimer the opportunity to read up about the process and how it should work – recognising that, as a ‘judge-led’ approach, it will vary from individual to individual. Some judges have a history of hot-tubbing and legal counsel could usefully identify that to an expert who is preparing for court.

Strike the right balance

When hot-tubbing works well it provokes intellectual debate between experts. It is a good way to explore complex issues and seek to find common ground in the areas where two experts are not in agreement. From an expert’s perspective, there is a balance to be struck between confidence in one’s own opinion, and having an open mind and being flexible if the other expert makes a valid point. A mutual respect between experts is key to the success of the hot-tubbing format, so an expert witness should not be deferential to a colleague who may be seen to be more senior. A more junior expert should keep in mind that their view is still relevant, possibly more so if their clinical work is more extensive at the current time than that of their senior counterpart. Experts with experience, age and/or seniority on their side should not seek to undermine the other expert on that basis.

Stay on topic

The less structured and less formal setting of a judge-led joint examination can allow an expert witness to stray off topic. Legal counsel could usefully help experts prepare for hot-tubbing by reminding them of the scope of their evidence; and that their duty is to the court and not as advocates for their instructing party. With increasing focus on the length (and cost) of trials, the ‘hot tub’ looks like it is here to stay. For expert witnesses it means that court room skills need to be extended to prepare them for questioning – and being questioned by – the other expert, as well as communicating clearly and effectively with the judge. The first time in the ‘hot tub’ doesn’t need to get an expert witness hot under the collar, if they have a little support and forewarning from their legal counsel. q • Dr Danbury can be instructed through Medicolegal Associates on a range of cases involving intensive and high-dependency clinical care settings. Read his CV at www.medicolegal-associates.com/danbury. www.yourexpertwitness.co.uk

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There is no hierarchy of expert opinion, so choose wisely [AN APPEAL RULING reported by Yorkshire law firm Stewarts

illustrates the value of choosing the correct expert witness in a clinical negligence case. It involved the case of HJ v Burton Hospitals NHS Foundation Trust. The case was reported by Anna Higham of Stewarts. HJ had suffered a birth injury resulting in Erb’s palsy – a paralysis of the arm caused at birth. At trial, the judge largely preferred the evidence of the claimant’s care/occupational therapy (OT) expert Ms Rachel Jenkins and awarded the claimant net damages of £578,276.

Doctors’ defenders set down rules for experts [

THE Medical Protection Society (Medical Protection or MPS) is a leading protection organisation for doctors, dentists and healthcare professionals. Membership provides access to expert advice and support, together with the right to request indemnity for complaints or claims arising from professional practice. The MPS employs in-house experts to assist with the wide range of legal and ethical problems that arise from professional practice. That can include clinical negligence claims, complaints, medical and dental council inquiries, legal and ethical dilemmas, disciplinary procedures, inquests and fatal accident inquiries. The society has also produced guidelines for its members who are considering acting as medical expert witnesses. According to MPS: “If you are a doctor and want to practise medicine in the UK, you need to hold GMC registration with a licence to practise. Given this requirement, we have carefully considered the appropriate criteria we require of members who produce medicolegal reports and/or act as a medicolegal expert.”

Producing reports from records only

Doctors producing medicolegal reports purely from records are not required by Medical Protection to have a licence to practise, but are expected to: • Act within the bounds of their competency and specialty • Inform the instructing solicitor whether or not they have a licence • to practise and/or intention to maintain it in the future. The MPS adds: “It may well be that possession of a licence to practise in such a situation will lend credibility in the provision of a report, but at present it is not a condition that we require.”

The defendant appealed the findings of the Recorder of Sheffield, Mr Recorder Murphy, who had been the trial judge at Sheffield County Court. The appeal was heard in the Sheffield District Registry of the High Court, by Mr Justice Turner, on 10 May 2018. Oral evidence had been heard at trial from the claimant’s mother, a psychologist for each party and a care/OT expert for each party. Written evidence was submitted from a jointly-instructed consultant orthopaedic surgeon, Professor Giddins. Neither party applied for Professor Giddins to be called to give evidence. There were two main grounds of appeal: • Recorder Murphy’s preference for the evidence of Ms Jenkins was • inconsistent with his findings as to the weight to be given to the • evidence of Professor Giddins • Professor Giddins’ role as a joint expert and his discipline as an • orthopaedic and hand surgeon enjoyed such primacy as to preclude • Ms Jenkins from venturing an assessment of care and occupational • therapy needs that departed from the views Professor Giddins had • expressed in writing Mr Justice Turner dismissed the first head of appeal quite quickly. At trial, Recorder Murphy had said that he started his judgment with the agreed evidence of Professor Giddins and would use his evidence as the cornerstone for the award of damages to which he would then add other evidence in order to complete the task. Mr Justice Turner said that when referring to Professor Giddins’ evidence as a cornerstone, Recorder Murphy did not intend to regard himself as ‘bound rigorously to apply such evidence as a straitjacket upon the views of the other experts’. The second ground was also dismissed. Mr Justice Turner said: “In the context of modern and serious catastrophic personal injury litigation, there is likely to be a panoply of expert witnesses which may include orthopaedic surgeons, neurologists, neuropsychologists, psychiatrists, educational psychologists, care experts, occupational therapists, speech therapists, accommodation experts, physiotherapists, information technology experts or accountants. It would be artificial in the extreme automatically to treat the evidence of each and every such type of expert as occupying nonoverlapping magisteria.” Mr Justice Turner agreed with the description provided by the Royal College of Occupational Therapists that it is the role of an occupational therapist in personal injury claims to assist the court by undertaking an objective assessment of how the person making the claim has been affected, and making recommendations on the rehabilitation and life-long special arrangements, care and equipment needed and associated costs. He said that Recorder Murphy was entitled to find that the hands-on experience of Ms Jenkins tipped the balance in favour of her evidence. q Extracted from a news report by Stewarts (www.stewartslaw.com)

Producing reports from direct assessment and/or patient examination

In these cases the MPS states: “In addition to the requirement to advise the instructing solicitor whether or not you have licence to practise and/or intend to maintain it in the future, we require any doctor directly assessing and/or examining a patient for the purposes of producing a medicolegal report to maintain a licence to practise. “This is required for all condition and prognosis reports, and any other type of medicolegal report where direct assessment and/or examination is required. Whilst this is not a current, explicit GMC requirement, we believe it is necessary in order to protect the position of the member, should a complaint arise.” q

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Government pledges reform following mental health review [THE GOVERNMENT IS set to introduce a new Mental Health Bill,

following publication of the final report by the Independent Review of the Mental Health Act 1983. The government is accepting two of the review’s recommendations to modernise the Act. Those detained under the Act will be allowed to nominate a person of their choice to be involved in decisions about their care. Currently, they have no say on which relative is contacted. That, the government acknowledges, can lead to distant or unknown relatives being called upon to make important decisions about their care when they are at their most vulnerable. People will also be able to express their preferences for care and treatment and have them listed in statutory ‘advance choice’ documents. The government will issue a formal response to the review’s recommendations in the New Year before preparing the new legislation. PM Theresa May said: “The disparity in our mental health services is one of the burning injustices this country faces that we must put right. “For decades it has somehow been accepted that, if you have a mental illness, you will not receive the same access to treatment as if you have a physical ailment. Well, that is not acceptable. “I commissioned this review because I am determined to make sure those suffering from mental health issues are treated with dignity and respect, with their liberty and autonomy respected. “By bringing forward this historic legislation – the new Mental Health Bill – we can ensure people are in control of their care, and are receiving the right treatment and support they need.” The view that mental health patients must be given greater choice and control when the legislation is revised was echoed by the Law Society of England and Wales. Its president Christina Blacklaws commented: “At the heart of this review is the principle – which we share – that giving mental health patients greater involvement in decisions about their own care and treatment tends to lead to better outcomes. We have long said people detained for mental health problems need legislation that guards their rights and dignity effectively, while ensuring their views and choices are respected. A shift in the balance of power between patients and professionals should mean people are supported to make more decisions for themselves. “There is an urgent need to address the societal and cultural issues, recognised by the review, that contribute to the over-representation and negative experiences of people with Black African and Caribbean heritage under the current legislation.” The society believes that policy-makers will need to consider the interface between the Mental Health Act and the Mental Capacity (Amendment) Bill currently going through Parliament, which determines how care and treatment are delivered to people who lack capacity to make their own choice and who are deprived of their liberty. Key areas of overlap – in the delivery of care to young people, people with learning disabilities and autism, for instance – will require particular attention.

Legislation alone will not solve the problems, however, the society believes. Many of the independent review’s positive recommendations would need a substantial injection of resources to succeed. For example, reducing compulsory detention depends upon more accessible and responsive crisis and community-based services, transferring prisoners to secure hospitals within a 28-day time limit may require extra beds within the detention estate. In addition, extending tribunals’ powers and increasing opportunities to appeal would require more hearings – and so more judges, panel members and tribunal staff. Empowering patients with an opt-out advocacy entitlement would require more advocates to support them throughout their journey and there will be a greater demand for aftercare services. The need to fund reforms was also stressed by Professor Wendy Burn, the president of the Royal College of Psychiatrists. She said: “As the review itself acknowledges, changing legislation alone is not the answer. Mental health services get just over one in every nine pounds spent of the NHS England budget. This is despite mental health making up nearly a quarter of the NHS disease burden. “If the government is serious about significantly reducing the use of the Mental Health Act, hard-pushed mental health services urgently need further investment and a larger workforce to help people stay well before they reach a crisis point.” Professor Burn also addressed the issue of the disproportionate number of people from ethnic minorities being detained under the current Act. “In a survey, 80% of psychiatrists named stigma and a lack of services, especially in the community, as the most common reason for why more people from some BME groups were being detained. The RCPsych position statement on racism urges the delivery of culturally appropriate care tailored to individuals.” q

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Workplace mental health is demanding attention [

THE ISSUE OF mental ill-health at work is one that has come to the fore in the past couple of years. HSE recorded almost halfa-million cases of work-related depression, anxiety and stress in 2015/16. A number of high-profile personalities have helped to bring the issue to public notice and campaigns have highlighted the hitherto ‘hidden’ scourge. One of the sectors in which the issue is particularly acute is the construction industry. Figures from the ONS revealed there were over 1,400 suicides of construction workers in the five years t0 2015 – more than any other industry. To tackle the issue, in 2016 the Health in Construction Leadership Group (HCLG) established a support group, Mates in Mind, with the support of the British Safety Council. Mates in Mind is a registered charity operating in the UK, with the aim of providing clear information to employers on available support and guidance on mental health, mental illness and mental wellbeing, and how they can address that within their organisations.

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Mates in Mind aims to: • Raise awareness and understanding of • mental health and mental ill-health. • Help people to understand how, when and • where to get support. • Break the silence and stigma through • promoting cultures of positive wellbeing • throughout the industry. The organisation has an ambitious goal: to have reached 75% of the construction industry by 2025. In December the charity appointed notfor-profit specialist James Rudoni as its managing director. He commented: “The work that Mates in Mind has done in year one has been hugely impressive and is already having a significant impact in improving understanding of mental health and wellbeing across the construction Industry.” A more broadly-based information resource for employers is the Mental Health at Work website, curated by mental health charity Mind. Its head of workplace wellbeing, Emma

Mamo, marked National Stress Awareness Day in November by blogging: “Research from our Workplace Wellbeing Index found that 40% of employees taking part in the staff survey who reported that they were currently experiencing poor mental health said that this was work-related. This was either due solely to problems at work or a combination of problems at work and outside of work. “We believe that the day-to-day demands and pressures of work should not be a barrier to good mental health. As an employer, you can provide better support for your employees by creating a workplace where everyone feels valued and supported.” At its most severe, mental illness caused by conditions at work can lead to a personal injury claim. Jenny Jones, the specialist at Quittance Legal Services, writes: “If your employer has failed, or not done enough to address your situation, the employer may be considered liable for your stress related illness. If your employer is liable then it may be possible to make a no-win, no-fee compensation claim.” q

Knowing your experts is an expertise in itself SOPHIE SHARP of Expert in Mind offers an insight into life working with mental health experts

[

IT’S BEEN A very exciting year both for me and the team at Expert in Mind, having reached our 10th anniversary in business and being shortlisted for Medico-legal Provider of the Year at the Personal Injury Awards 2018. I’ve been with Expert in Mind for four years and have been promoted from case manager to office manager and, most recently, to business manager. It has been fascinating to work so closely with experts of such high calibre and my thirst for knowledge on mental health issues has grown and grown. That was recently recognised at the Lawyer Monthly Expert Witness Awards, where I received an award in recognition of my specialist knowledge and experience. Here are some of the questions I’m frequently asked: What do I enjoy about working for Expert in Mind? I am very passionate about developing the business and growing our panel of experts. I have worked incredibly hard to secure great working relationships with both our clients and our experts. Aside from that, I adore the fact that we have two dogs in the office. Having them wandering around ensures an enjoyable and calm working environment and they are a welcome distraction when the pressure rises. What is important to you? It is important to me that our experts and clients receive the personal but professional and efficient service we pride ourselves on giving. I am a big pleaser and therefore endeavour wherever possible to accommodate any request presented to me. My ability to accommodate last-minute report requests is a very popular service!

What is important to Expert in Mind? It is important to Expert in Mind that the right expert is suitably matched to each case, to ensure the client receives a high-quality report that helps them get the best result for their client. What makes Expert in Mind the first choice for instructing mental health experts? We have a panel of specialist psychiatrists and psychologists who are hand-picked for their expertise and reputation. Each expert is assigned their own individual case manager, who manages their cases from beginning to end. They provide a one-stop interface between expert and client to ensure a personal and professional service. Each case manager goes the extra mile to ensure they develop a close working relationship with their experts and have a wealth of knowledge about them and their cases. What has been the highlight of working at Expert in Mind? There are so many – and I am not just saying that because my boss is going to read this! My promotions are obviously very exciting, as well as challenging. I have loved being part of the company’s expansion, which has included moving offices and knocking down walls to accommodate our expanding team. The awards are, of course, super exciting for the whole team. I also love working with our experts on the high-profile cases on which we are instructed. They are fascinating, emotional and inspiring and it’s an honour to be involved. How would your colleagues describe you? As Little Miss Sunshine! I live up to my name, too. q

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CQC finds community mental health services on decline [

PEOPLE’S EXPERIENCES of the care they receive from community-based mental health services have continued to deteriorate, according to an annual survey from the Care Quality Commission (CQC). The survey, which was published on 22 November, highlights concerns around access to care, care planning and support for people with mental health conditions in relation to physical health needs, financial advice or benefits. More than 12,700 people took part in the survey, which asked them about their experience of being cared for outside of hospital by community-based mental health services. That includes specialist outpatient clinics as well as teams that visit people in their homes. Although 71% of respondents felt they were ‘always’ treated with respect and dignity by NHS mental health services, less than a third (30%) rated their overall experience of community mental healthcare as nine out of 10 or above: down from 34% last year. The findings contrast with the 2017 Adult Inpatient Survey, where 50% of acute in-patients receiving care for a physical health problem answered nine or above out of 10 for this question, showing a continued disparity between the experiences of people being treated for a mental health condition and those being treated for a physical condition. Dr Paul Lelliott, deputy chief inspector of hospitals (and lead for mental health) at the CQC, said: “Community mental health services provide vital care and treatment to people with mental health conditions. They should be there to provide both the on-going support that people with long-term problems need to enable them

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to live a fulfilling life and prompt help at times of crisis, ensuring that their mental health does not deteriorate to the point that they require inpatient care.” Those that had been in contact with mental health services for less than a year, or who were treated for a first episode of psychosis, often reported better than average experiences. In contrast, people aged 18 to 35 and those diagnosed with non-psychotic chaotic and challenging disorders had worse than average experiences across multiple areas. Dr Lelliott continued: “Worryingly this survey has found that people are reporting a worsening experience of care and that the longer that people have been in contact with services, the less positive they are about the care they are receiving.” Vicki Nash, head of policy and campaigns at Mind, voiced disappointment with the findings. She said: “That many people still don’t feel they are getting the help and support they need, whether on a day-to-day basis to help them manage their mental health or when in crisis, shows just how far we have yet to go. “These findings also show that mental health isn’t just about the NHS, and highlight the urgent need for a cross-government strategy that recognises the huge impact of housing, benefits, employment and other aspects of people's lives on their mental health.” The survey results have been released for providers to review the experiences of people who use their services and to make improvements where needed. CQC will use the findings as part of its wider monitoring of the quality of mental healthcare and to plan its inspections. q

Remember, remember Breakthrough reported – don’t stand near fireworks in understanding ear [ cell maturation

IN NOVEMBER, ahead of Guy Fawkes Night, the hearing charity Action on Hearing Loss reminded people of 10 of the loudest noises. At 230 decibels (dB) the sperm whale weighed in as the loudest, ahead of a rocket launch at 180dB. Of the sounds people are actually likely to hear, fireworks was the loudest, at 120dB, followed by loud music at 110dB, a night club at 100dB and a fire alarm at 97dB. A lawnmower produces around 94dB, while heavy traffic can hit 88dB. Noise at those levels can cause permanent damage to hearing, and even domestic chores such as using a food blender or vacuuming can generate between 75-85dB. Gemma Twitchen, senior audiologist at Action on Hearing Loss, explained: “Every day we expose our ears to heavy traffic, kitchen appliances and live music, but most people do not know what is deemed safe and what can be potentially damaging to your hearing. “Experts agree that exposure to noise at or above 85dB can damage hearing over time. Safe listening levels also depend on how loud, long and frequent the exposure - the louder the sound, the less the exposure time should be.” And as for the fireworks people enjoy both on Guy Fawkes Night and at New Year: “As a firework display averages around a staggering 120dB, this means that just a few seconds of standing too close to fireworks can potentially cause permanent hearing damage, such as noise-induced hearing loss or tinnitus.” q

[ SCIENTISTS HAVE DISCOVERED a key regulator that

controls how a type of inner ear cell critical for hearing matures – the so-called outer hair cells. The discovery, in mice, was made by a team from the Medical Research Council at Harwell (MRC Harwell) and the University of Maryland and has been published in the journal Nature. The scientists say these new insights into hair cell maturation could inform future research into developing stem cell therapy to treat hearing loss. Our ability to hear depends on two types of specialised cells in the ear, known as inner and outer hair cells. Those cells are responsible for turning sounds into electrical impulses and transmitting them to the brain. When the cells are damaged or lost they are unable to regenerate and hearing becomes impaired. Because of that, potential therapies to restore hearing have focused on understanding the genetic roadmap that dictates how these hair cells develop and mature, as this could help initiate their replacement using stem cell therapy. Professor Steve Brown, one of the study authors and director of MRC Harwell, commented: “This research represents a vital first step in identifying the regulatory factors that are required for hair cell specialisation and could be used to direct stem cell development in therapy. Further work is now needed in order to identify additional factors that may be involved in regulating inner hair and outer hair cell development.” q

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Why is my fracture not healing? By MR NIKHIL SHAH, consultant trauma and orthopaedic surgeon at the Wrightington Hospital in Wigan

[POOR OUTCOMES DURING the process of fracture healing is a

scenario one encounters not uncommonly in clinical practice. Thankfully, the majority of fractures heal uneventfully: bone is a unique type of tissue that can heal with the forming of new bone instead of fibrous tissue. However, those fractures that do not heal well can cause a lot of problems for the patient and also for the health service. Such problems can also figure in medico-legal practice. There are many factors that affect fracture healing and not all of them are under the control of the surgeon. Non-union risk can be influenced by fracture location and severity, underlying disease comorbidity and medication use. It has been observed that there is a complex interaction between patient-specific biological risk factors, fracture-specific factors and surgical factors that influence the final outcome. That includes what is referred to in clinical practice as ‘the personality’ of the fracture itself. Healing is influenced by the type of the bone that is fractured, the severity classification of the fracture (bone loss, the degree of comminution or number of fragments), level of the fracture within a particular bone, extent of damage to the surrounding soft tissues – known as soft tissue devascularisation – and the blood supply to the fractured bone. Certain fractures involving certain bones – such as the distal third of the tibia, the scaphoid bone in the wrist and intra-capsular fractures of the femoral neck – are recognised in clinical practice as problematic areas in achieving fracture healing. Bone loss in fractures – pieces of missing bone creating large gaps –

often requires quite complex and prolonged limb reconstruction surgery to grow back or replace the missing bone. When the soft tissue envelope over a bone is damaged extensively, such as in open fractures or high-energy injuries which have wounds overlying the skin, the blood supply to the fracture is often disrupted. Such fractures not only have an increased risk of infection, but also of non-unions – such as open fractures of the tibia. This can occur even with good surgical treatment, and infection can be a very difficult problem to treat even with extensive surgery. Outcomes after fractures are also affected by the age and health of the patient: age often being a surrogate marker of additional health-related risk factors. Pre-existing malnutrition is a major risk factor in fracture healing, such as in patients who consume excess quantities of alcohol or elderly patients who present with hip fractures. Malnutrition is associated with a higher prevalence of complications, worse outcomes and even mortality. Healing can be adversely influenced by previous radiation in the fractured bone or the use of certain medications, such as nonsteroidal anti-inflammatory drugs and corticosteroids – and, quite importantly, smoking. It is estimated that approximately one-fifth of the adult UK population continues to smoke. Smoking is an important modifiable or correctable risk factor. There is lot of research available that shows smoking to be associated with delayed unions or non-unions, not only of fractures but of other orthopaedic procedures such as fusions of joints. Other medical patient-specific risk factors that have been reported in the literature to be associated with fracture healing complications include alcoholism, diabetes, high body mass index, renal insufficiency and vitamin D deficiency. More than one factor may co-exist in the same patient. Surgical factors can also be associated with failure to heal. If the fracture is not reduced well or fixed soundly or stably, and there is lot of instability at the fracture, then that can hamper healing. If a fracture does not heal, careful evaluation of the underlying reason is required before appropriate treatment can be planned, which may include further surgery or bone grafting procedures. It must be acknowledged that not every healing-related complication of a fracture is related to suboptimal surgical treatment. It is a recognised complication of fracture healing. q www.yourexpertwitness.co.uk

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AI meets 3D to improve patient analysis [ INNOVATE UK has awarded a £865,000 Digital Health

Technology Catalyst grant to a consortium of partners to develop an advanced artificial intelligence (AI) platform that analyses physical movements of patients on a daily basis. The solution will apply to a wide range of conditions and help clinicians make data-informed decisions about patient progress and wellbeing. Led by Cambridge Bio-Augmentation Systems (CBAS), partners in the consortium include Andiamo, makers of usercentred children’s orthotics, CUSH Health – which makes smart devices for elderly patients – and the Human Performance Lab at Queen Mary University of London. CBAS has developed the AI platform and will be trialling it with Andiamo’s 3D-printed orthoses and CUSH Health’s smart device for elderly patients at risk of falls. The project began in October and will continue for 15 months. Groups of patients will be selected to trial wearable devices on their orthoses and other devices in their daily lives over a number of months. The readings analysed by the AI platform will then be validated by Queen Mary’s Human Performance Laboratory. The results from the AI analysis have been shown to be 96% accurate. In addition, the lab will explore how to apply the novel technology to movement measurements. The ultimate aim for a finished product is to help clinicians deliver better care as well as add greater insight and support for their patients and their families. q

Orthotic advance offers new hope By STEPHEN SECCOMBE Consultant Orthotist

[IN THE PAST, claimants with a flaccid ankle, or what is commonly

referred to as a dropped foot, have had limited options. While the mechanism of injury can be numerous, the common clinical presentation is that a specific group of muscles are not being innervated and therefore not functioning. Treatment has been limited to various ankle foot orthoses (AFOs) – commonly referred to as splints – which are either from stock or custom-made, or there is the option of trying something more dynamic such as Lycra or functional electrical stimulation (FES). Even if clinically suitable, the two latter options may be rejected through lack of tolerance. That means a return to an AFO. The design is often simple in its approach and effective at keeping the foot up; however, in stance, they do not facilitate a smooth transition throughout the gait cycle. In recent months, however, I have had opportunities to prescribe AFO’s that incorporates a specific ankle joint with springs inside which can, once fine-tuned, be customised to the pathological gait in order to mimic the physiological gait as close as possible. This will facilitate 'normal' movement at the ankle joint, as the leg and body pass over the foot during the stance phase of gait. While such orthotic treatment often complements many other forms of treatment, I hear comments from my clients such as: “I’m now not so tired at the end of the day,” or “I finally feel like I am walking normally and not plonking my foot down,” and “…for the first time in many years I walked with confidence into a meeting. Which are great outcomes to achieve! q

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Computer models will allow personalised heart treatment [GROUND-BREAKING computer models that simulate the workings of individual patients' hearts could boost treatment of a common cardiac condition that affects a million people in the UK and countless more worldwide, according to a report from the Engineering and Physical Sciences Research Council (EPSRC). An EPSRC-funded team at King's College London – in collaboration with St Thomas's Hospital – has taken the first steps in developing models designed to optimise a procedure that corrects atrial fibrillation, a condition which causes abnormal heart rhythms. The new personalised computer models aim to increase the effectiveness of this procedure (which is known as 'catheter ablation') by making it possible to explore in advance different strategies for its use, geared to the specific needs of individual patients. They could potentially save the NHS over £20m a year by reducing procedure times and cutting atrial fibrillation recurrence rates. Atrial fibrillation reduces blood supply, leading to dizziness, breathlessness and fatigue, and increases the risk of a stroke. Every year, around 10,000 people in the UK have a catheter inserted in order to treat the condition using radiofrequency energy. But the procedure is not always effective, there is a small risk of it causing a stroke or death, and the condition often recurs. Dr Adelaide de Vecchi of King's College London, who led the project, said: “The really important thing is that these new personalised models show the heart working as a whole 'system'. They allow different catheter ablation strategies to be assessed for each specific patient – for example, with regard to the precise area of the heart to target – and

therefore enable the very best option to be pinpointed, maximising the prospect of improving the patient's quality of life.” The models have been tested using clinical data from patients under the care of Professor Mark O'Neill at St Thomas's. The aim is now to enhance and extend the models in terms of the number of cardiac cycles they can depict and apply them to larger cohorts of patients. Once this is achieved, it is anticipated that full clinical trials will be undertaken. Dr de Vecchi continued: “Subject to further development, we believe our models have the potential to enter routine clinical use within a decade, improving treatment of a condition that is especially common among older people. The models are very much in step with the drive towards personalised medicine, better cardiac care and improved management of our ageing population.” q

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Surgeons welcome 20,000 entries on breast implant registry [A COALITION OF British breast and plastic surgeons has

welcomed the news that over 20,000 operations have been recorded on England’s Breast and Cosmetic Implant Registry (BCIR). The milestone was marked in the first report of the registry, published in November. The report was welcomed by the British Association of Plastic, Reconstructive and Aesthetic Surgeons (BAPRAS), the British Association of Aesthetic Plastic Surgeons (BAAPS) and the Association of Breast Surgery (ABS). The BCIR was launched in October 2016, in response to safety concerns following the high rupture rate of Poly Implant Prosthese (PIP) and the inability to trace women who might be affected. The English registry is one of only three comprehensive databases in Europe, together with the Netherlands and Sweden. BAAPS, ABS and BAPRAS have long-championed the need for a registry and have been pleased to sit on the steering committee

responsible for the development and running of the BCIR alongside NHS Digital. With over 20,000 women receiving breast implants for reconstructive or cosmetic reasons in the past year, the registry is a vital patient safety initiative which enables the collection of long-term safety data and ensures the patient recipients of specific makes of implants can be traced, if needed. The recently-identified link between breast implants and a rare form of cancer called breast implant-associated anaplastic large-cell lymphoma has highlighted the importance of accurately recording the data. Currently, submission to the registry is not mandatory, but BAAPS, ABS and BAPRAS are encouraging all women receiving implants to consent to the submission of data. The associations look forward to this invaluable patient safety asset becoming available across all devolved nations. q

Photo collection conveys plastic surgery’s wartime origins [

TO COMMEMORATE the centenary of the end of World War One, the Royal College of Surgeons (RCS) and the British Association of Plastic, Reconstructive and Aesthetic Surgeons (BAPRAS) have shared a collection of photographs showing the early development of plastic surgery during the conflict. BAPRAS holds an incredible collection that documents the history of plastic surgery in the UK from WW1 to the modern age. It preserves surgical instruments, images and

Forehead flap to cover nasal injury. Photo courtesy of BAPRAS

papers relating to the growth of the specialty throughout the 20th century. BAPRAS president David Ward commented: “Harold Gillies created and led the teams that reconstructed these badly injured soldiers, developing new techniques that have stood the test of time. These have formed the basis of the plastic surgery skills used today, and indeed still have their place in our armamentarium. We have much to be thankful for to Sir Harold and his colleagues.” As part of the Explore Your Archive 2018 campaign the RCS held a ‘drop-in’ event allowing the public to see some of the objects from the BAPRAS archives. Commenting on the collection and the role of plastic surgery, plastic surgeon and RCS council member Mr Tim Goodacre said: “Being able to see these pictures that give such a vivid and poignant perspective of the horrific injuries that so many soldiers endured during the Great War, especially with the extraordinarily bizarre new ways of reconstructing their features, gives us now a real sense of the privilege that advances in plastic surgery have made over the past century. “These early pioneers of plastic surgery devoted their work to helping the afflicted soldiers to be able to face society again and go on to live as normal lives as possible. “These days, so many people think that plastic surgery is only for frivolous cosmetic changes by those who have little medical need – a view that is seen all the time in glossy magazines and advertising everywhere. The reality of plastic surgery is

Patient ‘Ashworth’ before, during and after reconstructive surgery. Photo courtesy of the RCS that it is a huge area of surgery that is used across all ages to treat a great number of conditions in people with disfiguring wounds, injuries, cancers and birth deformities – to restore their ability to face the world. “So many of the incredible advances in rebuilding bodies began with the pioneering surgery of the WW1 surgeons and teams – and continue to do so within the NHS alongside great research from the armed forces medical services today.” q www.yourexpertwitness.co.uk

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Royal College responds to ‘incorrect lens’ report [

THE ROYAL COLLEGE OF OPHTHALMOLOGISTS (RCOphth) has responded to a report Investigation into the insertion of an incorrect intraocular lens by the Healthcare Safety Investigation Branch (HSIB). Welcoming the report, the RCOphth explained the background to the incident: “As a result of major advances in technology, the procedure [cataract surgery] has evolved from one of simply removing a cloudy lens from within the eye to one whereby a replacement lens is inserted in to the eye, the power of which is selected to achieve a patient selected refractive outcome.” Correct intraocular lens selection is essential to achieve the desired outcome, the RCOphth notes. In the case giving rise to the report the surgeon selected an intraocular lens (IOL) from a list related to the patient’s other eye. “Fortunately, as is often the case, the patient’s eyes were similar in shape and the insertion of the wrong IOL did not significantly affect the patient’s post-operative need for glasses. Nevertheless, the incident was correctly raised as a serious event and, when considered in the context of 74 reported cases of incorrectly implanted IOLs, it was clearly an appropriate subject for investigation by the HSIB.” A number of the report’s recommendations were addressed by the RCOphth in its response, which offered to make itself available to assist in implementing them. The report noted that the National Institute for Health and Care Excellence (NICE) has relatively recently published a full guideline on adult cataract surgery that includes recommendations on how to avoid incorrect IOL implantation.

“It is unclear,” said the RCOphth, “whether the lessons to be learned from the guideline had reached both the surgeon and the eye department involved with the specific case in the HSIB report.” The RCOphth also noted a number of ‘significant patient safety issues’ identified in the case report that were not the subject of specific recommendations. They include the fact that the operating surgeon was a locum, the use of a general operating theatre and the lack of an ophthalmology trained theatre nurse. “This is a highly significant safety issue,” said the RCOphth. “It is possible that an appropriately trained ophthalmology nurse might have been able to explain the systems used in the hospital to the locum. More importantly, it is vital that the theatre staff know immediately what to do in the event of a pre-operative complication.” The NSIB report also included a safety observation to the effect that: “The National Ophthalmology Audit could be a useful vehicle for capturing the relevant information for the insertion of an incorrect artificial intraocular lens. The resulting data, when analysed, may improve understanding of why these events continue to occur and provide supporting evidence for further safety measures to prevent them.” In response the RCOphth stated: “The Royal College of Ophthalmologists agrees that the National Ophthalmology Database Audit (NOD) could be used in this way and welcomes the HSIB’s support. However, sustainable funding for the NOD is urgently required, as the current NOD funding stream will end in August 2019.” q

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Why all clinicians should beware compartment syndrome 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

[

COMPARTMENT SYNDROME is a condition which may affect the upper or lower limb, leading to severe damage to the tissues and longterm disability. In a compartment syndrome, an injury to the muscles, usually in the lower limb, leads to swelling of those muscles. These are contained within a tough fascial compartment, which is inextensible. If enough swelling occurs within the fascial compartment, the pressure increases inside the compartment. Initially, veins within the compartment are compressed, preventing blood leaving the muscles and causing a further rise in pressure within the compartment. If the rise in pressure is great enough it prevents blood entering, leading to ischaemia of the muscle. Unless this is treated promptly (within a few hours) it starts to cause permanent damage to the muscles and nerves within the compartment, which increases the longer treatment is delayed.

Mechanisms of development of compartment syndrome The usual factor leading to a compartment syndrome is direct injury by external force, leading to a fracture of the lower limb – although direct trauma to a muscle group may also lead to swelling sufficient to cause a compartment syndrome to develop. In the lower limb, fractures below the knee are a common source of the problem. There are four fascial compartments in the leg below the knee and the most commonly-affected is the anterior tibial compartment. In vascular surgery, operations to restore blood flow to the limb after a period of limb ischaemia often lead to substantial muscle swelling, sufficient to provoke a compartment syndrome. It is common practice, in cases where severe limb ischaemia has affected a limb prior to restoration of blood flow, to perform ‘fasciotomy’ operations, to open up the fibrous covering of the muscles surgically and prevent pressure rising within the muscle compartment. Cosmetically, that requires long incisions in the calf, but these usually heal reasonably well and severe damage to the nerves and muscles of the limb is avoided. Iatrogenic causes of compartment syndrome are occasionally seen. In the lower limb these may arise following protracted abdominal operations on the gastrointestinal or urological systems with the lower limbs elevated. The circulatory system of the human body was not intended to provide an adequate blood flow to the lower limbs when the legs are substantially higher than the heart. The blood pressure in the legs falls and that may lead to limb ischaemia for the duration of the operation. The muscles of the leg swell when the limbs are levelled at the end of the operation and that may lead to the development of a compartment syndrome, most commonly affecting the anterior tibial compartment. In the upper limb, the radial artery at the wrist is commonly cannulated by specialists in intensive care in order to measure the blood pressure reliably. In addition, cardiologists commonly use this artery to gain access to the vascular system during coronary angiography and investigation of the heart. Bleeding from the point of puncture of the artery may lead to a compartment syndrome affecting the flexor compartment of the forearm.

Clinical consequences of compartment syndrome

The outcome of a compartment syndrome depends on the severity of the ischaemic damage. The muscles and nerves of the body are very

sensitive to damage from ischaemia and urgent treatment, within 12 hours of the onset of symptoms, is required if permanent disability is to be avoided. Muscle dies following severe ischaemic damage and it is slowly converted to fibrotic scar tissue, which no longer has the ability to contract. The affected muscle groups are weakened or paralysed. Nerve damage leads to loss of function: the muscles supplied by the nerves are paralysed and sensation is lost in the affected regions. More troublesome is severe neuropathic pain which may arise from ischaemic nerve damage, leading to permanent severe pain in the affected limb.

Diagnosis and treatment

The clinical features of compartment syndrome include severe pain in the affected muscle groups, swelling of the muscles and paralysis of the affected region, with loss of sensation in affected nerves. Where severe pain arises in a muscle group, disproportionate to the treatment or injury, compartment syndrome should be suspected. The window of opportunity for treatment is fairly brief. It has been shown that treatment within 12 hours of the onset of symptoms is likely to lead to complete resolution of symptoms, with no significant sequelae. After that, persistent paralysis and pain may affect the damaged region. The diagnosis relies on clinical recognition of the problem. Symptomatic treatment of unexplained pain in the limb is not appropriate, since strong analgesia will abolish the pain but allow severe damage to the limb to evolve. Emergency ‘fasciotomy’ is required to incise the affected muscle groups and widely lay open the muscle coverings. If the treatment is not accomplished within 12 hours of the onset of symptoms, it is probably best not to undertake any surgical treatment. The damaged muscles die and necrotic tissue discharges from the wound for a lengthy period, necessitating several subsequent operations to remove dead tissue.

Prevention of damage

Clinicians in all medical specialisms should be aware that compartment syndrome may arise from a number of different clinical situations. The specialisms where compartment syndrome may arise are emergency medicine, trauma and orthopaedics and vascular surgery. As noted above, compartment syndrome may also be seen by intensivists and cardiologists. However, I consider that doctors from all specialisms should be familiar with the clinical features of compartment syndrome, so they can make an urgent referral to an orthopaedic or vascular surgeon when the diagnosis is suspected. Expedient treatment of a compartment syndrome will lead to resolution of the problem without residual damage. Delayed management is likely to lead to permanent troublesome problems with the affected limb and may be considered to be substandard management. In situations where iatrogenic injury has been caused during operations with the limbs elevated or after cannulation of the radial artery in the forearm, the onset of the compartment syndrome occurs in hospital. Failure to rapidly recognise the diagnosis and arrange for emergency fasciotomy may lead to long-term disability and may comprise substandard treatment. q www.yourexpertwitness.co.uk

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