Your Expert Witness Issue No. 52

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contents IN THIS ISSUE 7

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Opening Statement

NEWS 9 Whiplash proposals show contempt, says APIL 9 Legal Aid review: proposals will lead to chaos, say lawyers 11 CJC publishes report on vulnerable parties 11 Ancient mechanism brings Scottish rules up to date FINANCE 12 Change is on the way in the financial services sector 13 Money laundering rules now apply to cryptoassets 14 Expert accountants must really understand the business OCCUPATIONAL HEALTH 16 When ill health is caused by your work, there is redress 16 Asbestos hasn’t gone away – and it has to be managed 17 Prosecutions show that the law on asbestos will be enforced 19 Noise at work: the effects can be debilitating 19 Could celebrated NIHL case herald a surge in claims?

20 What an engineering expert needs in an NIHL case 21 What is NIHL?

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TRANSLATION & INTERPRETING 23 Translation association leads the way in standardisation 23 Linguists seek role in UK’s new future

A to Z WEBSITE GUIDE 22 Our A to Z guide to the websites of some

of the country’s leading expert witnesses.

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EXPERT CLASSIFIED 59 Expert Witness classified listings 62 Medico-legal classified listings

Your Expert Witness Suite 2, 61 Lower Hillgate, Stockport SK1 3AW Advertising: 0161 710 3880 Editorial: 0161 710 3881 Subscriptions: 0161 710 2240 E-mail: ian@dmmonline.co.uk Copyright Your Expert Witness. All rights reserved. No part of this publication may be copied, reproduced or transmitted in any form without prior permission of Your Expert Witness.

Views expressed in this magazine are not necessarily those of the publisher. Printed in the UK by The Magazine Printing Company Plc www.magprint.co.uk

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MEDICAL ISSUES 25 Medical Notes

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NEWS Give us the tools and we’ll do the job, GMC chief tells govt 27 27 Doctors’ union forces U-turn in Wales 29 More than a quarter of NHS staff have been harassed Mediation is what you need, claims body finds 29 PAIN Complex regional pain syndrome and fibromyalgia 30 32 Make sure to discuss potentially catastrophic complications when taking consent HERNIA SURGERY Royal College responds to BBC hernia mesh claims 33 CARDIOLOGY Half of cardiac patients missing out on rehab 35

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LYMPHATICS Lymphoedema – swelling of the limbs 36 OBSTETRICS & GYNAECOLOGY Maternity units show improved safety performance 38 38 Neonatal mortality: it’s a complex picture 39 The medico-legal implications of bowel injury during gynaecological surgery?

PSYCHIATRIC & PSYCHOLOGICAL ISSUES Mental health services must address human rights issues 41 43 Complex PTSD in asylum seekers 45 Guidance offered to psychologists working with refugees and asylum seekers 45 Cladding: flat-dwellers need emotional support OPHTHALMOLOGY Eye experts issue joint statement on improving patient care 47 48 Optometrists call for halt to degree apprenticeship

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DENTISTRY & MAXILLOFACIAL SURGERY Mask shortage: dentists applaud govt action 49 49 Tooth whitening prosecutions continue to mount 51 “I’ve given up” – the true cost of lying smokers in healthcare litigation PLASTIC, RECONSTRUCTIVE & HAND SURGERY Knives pose a danger in the workplace as well as on the street 53 PHYSIOTHERAPY Physios stress the importance of rehab 54 55 The physiotherapist: often the best source of expert opinion in injury cases ORTHOPAEDICS New model for knee revision procedures announced 57 58 Thousands waiting months for joint replacement, figures show www.yourexpertwitness.co.uk

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Opening Statement [

WELL, THAT’S IT THEN! We’ve been and gone and done it – Brexit, that is of course. Not quite. There is the matter of the transition period, plus tying up a number of loose ends of European legislation that have been brought into UK law to allow normal service to continue.

One such is the 5th Money Laundering Directive, which was incorporated into UK law as an amendment to the existing anti-money laundering legislation.

Extra regulation is normally seen by those involved in the activity in question as burdensome; however, in the case of money laundering regulation the inclusion of cryptoassets is seen as a step on the road to their acceptance as mainstream.

• Despite Brexit, the first Queen’s Speech of the Johnson era promised a new dawn in the UK’s involvement in world affairs, ‘from defence to diplomacy and development’.

The Chartered Institute of Linguists has weighed in with the argument that modern language learning is a key element in being able to do business in a modern multilingual world. It doesn’t cut it any more to make yourself understood by shouting louder.

• The devolution of powers to the constituent parts of the UK, particularly Scotland, has been going on even longer than Brexit. While Scotland has always had its own legal system, there were certain issues regarding finance that were still handled from London. The rendering of those powers to the new legislature is being handled using an ancient system: that of the Acts of Sederunt.

• Taking matters out of the courts is what is upsetting personal injury lawyers. It concerns the on-going efforts by successive governments to constrain the number of PI claims for whiplash following motor vehicle accidents. The latest effort, due to take effect on 1 April, has been deferred to 1 August.

The element that most incenses APIL is the lack of any kind of alternative dispute resolution as an option if there is disagreement. They have referred to it as treating injured people with contempt.

• In fact, the MoJ is far from being flavour of the month with lawyers of all descriptions. The Law Society is predicting the imminent collapse of the criminal justice system following publication of ‘accelerated items’ from the review of the criminal legal aid system.

It is in some ways a straightforward trade union dispute: the government is putting up an inadequate amount of extra cash to placate defence lawyers, particularly when viewed in the light of the more handsome settlement for the CPS. The Law Society points to defections from well-known defence firms to the CPS, with at least one of those firms throwing in the towel.

• One area of the law where the judiciary has pulled its weight is in treating vulnerable parties and witnesses. A report published in February by a CJC working group sets out no fewer than 18 recommendations to improve access to justice for vulnerable people, and their experience of the law.

It particularly points to the travesty of victims of sexual crimes being forced to seek redress through the civil courts after going through the ordeal of the criminal trial of their attackers.

• Eagle-eyed readers will notice a new subject area sitting between the purely legal and the clinical domains. That is the hugely important matter of occupational health – or rather what happens when it fails.

There are myriad topics dealt with by such august bodies as the Health and Safety Executive and the Institute of Occupational Safety and Health. And health in the workplace has come to the fore recently from behind the more dramatic safety concerns. In this issue we look at managing asbestos and the problem of noise-induced hearing loss. q

Ian Wild

Ian Wild, Director of Business Development Your Expert Witness

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Whiplash proposals show contempt, says APIL [

THE NEW SYSTEM for compensating those involved in motor accidents who suffer whiplash injuries has been deferred to 1 August, following announcements in the Houses of Parliament. The new regime was due to be implemented on 1 April.

The proposals have come in for savage criticism from personal injury lawyers. Their representative body, APIL, has described them as confirming ‘the government’s contempt for injured motorists’.

Legal Aid review: proposals will lead to chaos, say lawyers [THE LAW SOCIETY has predicted a criminal legal aid system

‘doomed to spiral into ever greater crisis’, following the publication on 28 February of ‘accelerated items’ from the Ministry of Justice’s review of criminal legal aid.

The Law Society had hoped that the interim proposals would provide some urgent relief from the deepening crisis in the criminal legal aid profession, but it has now rejected any suggestion they are adequate to match the scale of the problem.

Its president Simon Davis said: “We have warned time and again that the very existence of criminal defence practitioners is under threat. Unless the package is adjusted to address the depth and urgency of this crisis, then extinction may be firmly on the horizon.

“There are increasingly large areas of the country where there are no defence solicitors available. The very notion of British justice is in jeopardy – with victims left in limbo and the accused potentially deprived of a fair trial.

“Not only will the shortage of practitioners lead to injustice, it is economically unsound. Defence lawyers help ensure the justice system runs efficiently – and in doing so, save the taxpayer money.”

The society pointed to an interim increase of 10% for prosecutors at the Crown Prosecution Service – worth up to £85m – whereas the defence has not received an increase in 25 years.

Simon Davis continued: “Fewer new solicitors are choosing to enter criminal law, as opting for other areas of legal practice is simply more sustainable as a career choice. Meanwhile, a recent boost in funding for prosecutors means that many defence lawyers are taking jobs with the Crown Prosecution Service.” q

The new online process which the public will have to use will have no facility to enable people to question what the insurer says happened, who is at fault, and how much compensation is fair, says APIL. “You either accept their version of events and the offer, or it's hard luck,” APIL’s president Gordon Dalyell complained.

“The government's argument that you can have your 'day in court' and take the matter to the small claims court if you wish, gives a false impression of access to justice,” he explained. “The small claims court is not like a court as most people will know it. It involves filling in forms and paying a fee even before you start.

“Anyone who has suffered a genuine whiplash injury will tell you that it’s not something that can be brushed off. The pain can make the simplest, everyday things impossible, such as exercise, lifting up your children, or even just getting a decent night’s sleep.”

A particular element of the reforms that emerged from the announcement, that there would be no alternative dispute resolution remedy for cases in dispute, also came under fire.

Gordon Dalyell continued: “The excuse that an effective way of resolving conflict in the new portal cannot be found is just not good enough. It treats injured people with contempt. Failure to include an effective and fair way of resolving conflict in the new portal pits the inexperienced individual against the seasoned insurer without a safety net, hoping everything will go without a hitch.

“People who have had these injuries inflicted on them because of someone else’s careless driving deserve better than this.” q

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CJC publishes report on vulnerable parties [IN FEBRUARY a Civil Justice Council (CJC) working group

into vulnerable parties and witnesses published its final report and recommendations. The group was set up at the request of the Ministry of Justice and led by His Honour Judge Barry Cotter QC. It was tasked with gaining a better understanding of the problems vulnerable witnesses and other parties face in civil courts, and suggesting possible solutions to those issues.

The Master of the Rolls Sir Terence Etherton, as chairman of the CJC, said: “For the justice system to work, appropriate assistance must be provided to those that need it, to ensure they can take part in proceedings to the best of their ability.

“The CJC has worked to provide much-needed insight into the level of protection and support for vulnerable people in civil, non-criminal or family proceedings. It is uniquely placed to do so.”

The report makes 18 recommendations to enhance the experience of vulnerable witnesses and others. They include changes to to ensure

Ancient mechanism brings Scottish rules up to date [ON 1 MARCH the Act of Sederunt (Taxation of Judicial

Expenses Rule) 2019 came into force in Scotland.

The Acts of Sederunt date back to the 16th century and were essentially ecclesiastical instruments of secondary legislation (sederunt: ‘they have sat’ from the Latin verb sedere). However, with the advent of devolution they are used as a means of patriating judicial instruments previously emanating from the UK central judiciary.

The particular Act of Sederunt (Taxation of Judicial Expenses Rule) 2019 is of particular relevance to expert witnesses (skilled witnesses in Scotland) as it deals with their remuneration.

The part of the Act that applies to experts is contained in chapters 4 and 5.

The Act states: “Charges incurred to a person who has been engaged for the application of that person’s skill may only be allowed as an outlay if that person has been certified by the court on an application under rule 5.3. The court may only grant such an application if satisfied that the person is a skilled person, and that it is, or was, reasonable and proportionate for that person to be employed.” q

that all civil judges, parties and advocates consider the vulnerability of people involved in civil proceedings. In particular, the Judicial College should enhance the training of civil judges to detect and assist vulnerable witnesses and consider making that training mandatory. HMCTS should do the same for all staff who handle civil cases. Professional bodies are also asked to consider how their members can be trained to work with vulnerable parties and witnesses.

HMCTS should look at the availability, use and funding of intermediaries in civil cases, while court facilities should be equipped to accommodate assistance or protections that vulnerable witnesses require. The Ministry of Justice should increase its financial support to litigants in person – including to the charity Support Through Court and other key charities.

The Judicial College should also consider the training of criminal judges to ensure Criminal Compensation Orders are used where possible, to reduce the need for victims of sexual abuse to make a subsequent claim in the civil courts. Victims of sexual abuse should be awarded compensation at the earliest possible moment so that it can be used to fund treatment far earlier than will often be the case if they relied on provision by the NHS or other statutory services, as it sometimes leads to a much earlier reduction in their symptoms or the effects they experience.

The working group chair, HHJ Barry Cotter QC, said: “The public consultation undertaken by the CJC highlighted very real concerns about the current level of assistance for vulnerable people in civil proceedings, and also the lack of data. One of the council’s recommendations is that data must be gathered on vulnerable people in the court system, and adds to the arguments for greater data collection across the entire justice system.

“The council hopes that those organisations to whom the recommendations are directed will consider them as a matter of urgency.” q

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Change is on the way in the financial services sector

By PAUL GRAINGER, CEO Complyport Limited

[ON 21 JANUARY 2020 the FCA issued

a ‘Dear CEO’ letter to the financial adviser sector and another to the alternative fund management sector, warning of areas of poor practice or advice and setting out expectations for improvement.

It is self-evident that for the financial services sector, new developments such as implementing the Senior Managers and Certification Regime (SMCR) and Brexit will also cause many changes and will create many questions for which currently we have no certain answers.

In regulatory terms, certainty is desirable.

Uncertainty often leads to error or omission.

These are precisely the circumstances under which complaints can arise, leading to claims for compensation or redress that may result in litigation.

Of course, many complainants may have their complaint dealt with satisfactorily by a financial services firm. For those who do

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not, they may seek remedy via the Financial Ombudsman Service (FOS) who have the power to review the outcome of a customer complaint. If they uphold the complaint, they can award compensation and redress. However, this only applies for claims where compensation and redress are below the relevant maximum threshold. The FOS threshold is as follows: • £350,000 for complaints about acts or • omissions by firms on or after 1 April 2019 • £160,000 for complaints about acts or • omissions by firms before 1 April 2019, • and which are referred to FOS after that • date • £150,000 for any complaints referred to • FOS before 1 April 2019.

Whilst the limits for compensation may appear generous, it is important to remember that losses that may arise from mistakes, errors or fraudulent actions can often amount to sums much higher than the maximum compensation threshold.

In many areas of the country, a relatively modest house or flat can now cost in excess of £350,000. If there was to be a mistake, error or omission in a mortgage or life assurance policy that caused the loss of such a house, the compensation could often exceed the maximum.

Similarly, customers who are members of defined benefit (final salary) pension schemes or who are higher earners, can often build up entitlement in pension schemes that are very substantial. Again, error or omission relating to transferring or switching pension funds can also often amount to losses in excess of the maximum compensation threshold.

It is against this background that we start the year 2020. It will be interesting to see whether the financial services sector copes well with change or whether we see an increase in complaints being referred to the FOS and an increase in financial services litigation. q

Money laundering rules now apply to cryptoassets [

NEW REGULATIONS regarding anti-money laundering (MLRs) came into force across the EU on 10 January, as a result of the 5th Money Laundering Directive. Despite the UK leaving the union, the regulations have been brought into law via a Statuary Instrument laid

by HM Treasury. It amends the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017.

The amended regulations bring into the scope of anti-money laundering legislation a number of new activities. They include letting agents which rent out property valued at €10,000 or more for a minimum of one calendar month and those in the art market who deal in sales, purchases and storage of works of art with a value of €10,000 or more.

Dealing in cryptoassets also now falls within the ambit of anti-money laundering legislation. The move is seen within the industry as a step towards cryptocurrencies being seen as mainstream, rather than a burden.

The supervisor for businesses in the UK carrying out certain cryptoasset activities is the Financial Conduct Authority (FCA). Any UK business conducting those activities falls within scope of the regulations and will need to comply with their requirements.

Among other things, the FCA requires cryptoasset businesses to: • Identify and assess the risks of money laundering and terrorist • financing which their business is subject to • Have policies, systems and controls to mitigate the risk of the business • being used for the purposes of money laundering or terrorist financing • Where appropriate to the size and nature of its business, appoint an • individual who is a member of the board or senior management to be • responsible for compliance with the MLRs

• Undertake customer due diligence when entering into a business • relationship or occasional transactions • Apply more intrusive due diligence, known as enhanced due diligence, • when dealing with customers who may present a higher money • laundering/terrorist finance risk. That includes customers who meet the • definition of a politically exposed person • Undertake on-going monitoring of all customers to ensure that • transactions are consistent with the business’s knowledge of the • customer and the customer’s business and risk profile That list is not exhaustive and companies can find more information on the FCA’s website at www.fca.org.uk.

The regulator has indicated it will supervise compliance ‘proactively’ and take ‘swift action where firms fall short of desired standards and cause risks to market integrity’.

New businesses carrying out cryptoasset activity within the scope of the MLRs must be registered with the FCA before conducting business. Existing businesses already conducting cryptoasset activity before 10 January 2020 may continue their business but will need to ensure their compliance with the MLRs with immediate effect.

All existing businesses undertaking cryptoasset activities must be registered by January 2021. To ensure this deadline is met, these businesses must submit a completed application for registration

by June 2020. Existing Financial Services and Markets Act firms, e-money institutions or payment services businesses undertaking cryptoasset activity will also be required to apply for registration. q

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Expert accountants must really understand the business

By CHRIS MAKIN Chartered Accountant, Civil Mediator and Expert Determiner

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I RECENTLY PENNED an article in this journal entitled Understanding business accounts – what to look out for.

That’s all well and good, but is of limited value if one doesn’t understand the business on which the accounts are reporting.

So let’s turn now to the importance of understanding the business itself for any kind of litigation, as any interpretation of business accounts is only as good as an understanding of the business on which they are based.

In this article I seek to provide a handy guide as to what to expect from an expert accountant engaged to report on your client’s (or opponent’s) business, and to explain why it’s important that you use an expert who really understands business, who takes the trouble to understand the particular business on which they are reporting, and who can explain his views in simple terms to the judge or jury.

I address personal injury litigation first, and while personal injury is only one kind of the expert work I do, my experience in that field has many parallels with other kinds. So, if you are not a PI litigator, bear with me and you should learn something to your advantage.

Loss of earnings – the complexities of a correct approach

For the conventional employee, the traditional way of calculating loss of earnings is to take payslips for, say, the last 13 weeks before an accident, and assume that the average net pay would have continued but for that accident. That is wrong, because liability to income tax is assessed for a period of a year. The correct method was suggested by Lord Morton in West Suffolk County Council v W Rought Ltd [1957] AC 403, 414, 415 as: “It is submitted that in every case the true calculation is to ascertain the net amount which the claimant would have earned, but for the accident, in each tax year concerned, and to deduct from that the net amount which the claimant in fact earned (or is likely to earn) in that tax year.”

Lord Morton’s method – which is clearly the only correct one – encourages the claimant’s lawyer to look at total pay for annual periods. It would go wrong if the income lost through an accident were to be based on a small sample of past net weekly or monthly earnings. A labourer on an arable farm, for example, may work basic hours in winter, but extremely long hours on overtime at harvest time. His loss of earnings would be very much greater if he were to be injured and away from work for two months at harvest time than if he had had the same absence in the depth of winter.

While such issues need careful thought, they rarely need the skills of an expert accountant on such relatively straightforward matters; but the position with the self-employed is likely to be very different.

Some years ago, I was engaged as expert for the claimant following an RTA. He was a huge, powerful man: a workaholic whose activities before the accident were diverse. He was principally an arable farmer and plant hire contractor and did most of the physical work on the farm himself. He was the main heavy machinery operator on his own farm and worked as a contractor for others. He also bought and sold building materials. He had constructed two science parks from derelict farm outbuildings, creating a rent for the future. He had converted a stable block into a home for his sister and was in the process of converting a derelict Grade Two-listed manor house into an impressive home for himself.

After the RTA, although he still had his business acumen, his physical strength was much impaired. Whereas before the accident he could work 12-hour days for six days a week, medical evidence showed that he was now able to work only for a few hours before having to rest for a day or more. What then was his loss, and how should the court restore the status quo ante? The problem was how to follow Livingstone v Rawyards Coal Company [1880] 5 App Cas 25 at 39, where the court said that the plaintiff: “…should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he

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would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.”

My opposing expert and I took very different approaches.

She looked at the past accounts of the business and recognised recurring earnings of about £5,000. That was correct as far as it went; the annual accounts did show such low earnings. But that was only part of the picture: earnings were so low because the claimant had been neglecting his core business while engaged in other, very worthwhile, activities. He had spent his time on creating science parks for future rental income and on creating a home from a disused manor house, which should really be treated as a substantial DIY claim.

The approach I took was to think about what the claimant had really lost, and how it could be restored. He still had his farm, his plant hire, and a manor house to complete. He still had his ambitions and plans, but he had lost the physical strength to carry them out himself.

My solution was to ‘buy him a man’. I took the New Earnings Survey figure for a labourer and, with the cost of overtime and employer NI costs etc – reduced per Gourley for the tax relief he would have enjoyed on the business part of the labourer’s activities – I quantified the annual loss at £25,000. My opposing expert and I were far apart.

The matter went to trial. We both gave evidence and we both held to our views. The court adjourned and the judge asked for closing submissions from counsel, to be provided to him in writing next morning. Counsel for the claimant asked for my help in identifying a precedent for the approach I had taken, but I was not aware of any.

That evening I made two telephone calls. The first was to Ben Nolan QC, with whom I had worked on many PI cases. He said he was not aware of any such precedent, but agreed with my approach. I then rang the late, dear David Kemp QC, who said very much the same thing. The judge agreed with my methodology and my multiplicand at exactly £25,000.

The case I have described at length shows just how far wrong one can go without a deep understanding of the business – that business, of that type, in that unique setting, with those technical problems and with those strategic strengths and weaknesses.

In another farming case, I was required to quantify the loss of earnings for a sheep farmer, who could no longer do the heavy work on the farm following an RTA. His accounts showed negligible profits or even losses – but he simply couldn’t afford to sell the farm. Sheep farming was highly unprofitable and the farm had such a low value that to sell it at a huge loss was more than could be expected in mitigation. Again, I quantified the loss at the lump sum which would provide, per the Ogden tables, an annual sum to employ a farm labourer. Again, the status quo ante had been restored.

There are many other complications which are revealed only by an expert who takes the trouble to understand the business thoroughly.

The expert’s expertise

An expert accountant should, of necessity, have experience of a range of business types and sectors, and will in many cases have experience in dealing with people from a range of backgrounds. It enables the expert to draw from that experience and apply their knowledge to the case in hand, in order to draw the court’s attention to any relevant issues which need to be taken into account when making a judgment.

For example, you do not take the multiplicand as being the amount withdrawn from the business. Income is the net profit from the trading and profit & loss account, not the cash taken out. For example: • A sole trader may have a net profit of £40,000 but drawings of only £18,000. So he has lived on £18,000 and chosen to re-invest £22,000 in the business. The loss of income is based on income of £40,000 (less tax etc, per Gourley).

• Conversely, a business may be facing hard times, where the net profit has fallen to, say £2,000, but the proprietor is still taking out £18,000 to meet living expenses. The loss of income is based on £2,000 (less Gourley of probably nil) not on £18,000. The £18,000 is being met by reduction in stock or increase in bank borrowing or even by capital introduced by the proprietor. It is surprising how often one finds that a trader is introducing to the business their legacies, personal loans, funds from remortgaging the home and even child benefit into a business which has no future. That certainly does not provide an income on which a personal injury claim may be based.

A business cannot exist for long where the proprietor is taking out each year much more than the net profit. So the accountant’s skill must be used to determine how long it can go on before the business is forced to cease trading. The lifetime of the business is very much less than the remaining working lifetime of the proprietor and the loss of future earnings should be based on a modest future lifetime for the business, plus expected annual earnings for the remainder of the working lifetime after the business collapses and the claimant gets a ‘proper’ job.

As well as being closer to reality, that approach can often lead to an increase in the total future earnings claim. After all, how many people would be prepared to go to work for £2,000 a year, even if the minimum wage regulations would permit it?

Partnerships, family companies and executives

Matters can become much more complicated with partnerships, with family companies and with executives whose remuneration package is based in part on the performance of the company.

In situations like that, where claims can involve large earnings, an expert accountant is often required to understand the employing company’s business before and after the claimant was unable to work. That is especially so if the claimant had been a ‘rainmaker’ for the company, benefiting from a package giving him a share of the success which he was helping to create, and the company’s results since his departure have worsened.

That requires an expert accountant with a deep understanding of that company’s business, who can reach a robust opinion on what the results of that company would have been with the rainmaker’s help, and on what the claimant’s share of that success would have been. An annual bonus may be easy to predict, but where the package includes share options, much more experience and skill may be required.

To project the loss of a partner’s share of business profits requires little more than the same understanding of the business as is required for any loss of profits projection, plus an application of the precedents – principally Ward v Newalls Insulation Co Ltd [1998] PIQR Q41.

The ability to simplify

An expert will often have been involved in explaining complex issues to the owners of a family-run business, and will be used to simplifying such issues so that they can be understood by the layman.

The steps needed to quantify a director/shareholder’s loss are: • Understand the business • Project the company’s income, allowing for the loss of company income • as a consequence of the claimant’s absence • Establish the past distribution policy of the company • Ascertain the share of that distribution which the claimant customarily • received. That could include salary, benefits, pension contribution, • fee and bonus, and dividend as well as the profits left in the company • to increase the claimant’s share value • Apply that customary share to the profits which the company would • have enjoyed but for the claimant’s absence.

It sounds complicated, but an experienced accountant has no difficulty in applying those principles, and explaining them in simple language to the informed layman – lawyers and the judge.

Section 994 and other commercial claims

Turning to commercial litigation, the expert accountant needs to know about values based on P/Es, dividend yield, assets basis and so on. But first he needs to understand the business; and I regret to say that I have come across opposing experts who fell at the first hurdle.

To take one brief example, I acted for a shareholder in an Indian restaurant in Newcastle, who lodged a claim for unfairly prejudicial conduct. If successful, the judge would normally order that the applicant’s shares are bought by the other shareholders or by the company at a fair value. But the starting point is the worth of the whole company.

I dealt with it in the conventional way, by valuing on the earnings basis using P/E and demonstrating the reasonableness of the result with comparators – other businesses of a similar nature in a similar environment. The other parties objected and appointed their own expert.

The comparators he chose were Indian takeaways and restaurants on the west coast, hundreds of miles away; not remotely comparable with our restaurant in Newcastle. My value prevailed.

For a loss-of-profit example, I turn to one of my first cases, some 30 years ago. A claimant company contended that my client’s tool, a set of blades in a cutting platen, was faulty and had caused a loss of profits amounting to £330,000. By careful review of the production records, I was able to demonstrate that the losses had been caused by many other factors – such as no materials, no labour, no power, bank holidays and routine shutdown for maintenance.

The loss from downtime caused by the faulty tool actually only amounted to £105 - just 0.132% of the amount claimed! As soon as my report was disclosed, the claimant abandoned the claim and paid all the defendant’s costs. Moral: a manufacturer would usually keep production records, and all downtime is unlikely to be the result of one set of faulty blades. The expert should know that.

Matrimonial litigation

Valuing a company for matrimonial purposes is similar to a S994 valuation.

Of course, the expert must know about the Family Procedure Rules, but his work starts with understanding the particular business. Two examples: First, the ultimate special purchaser. I acted as shadow expert for the wife in a case where the spouses owned a specialist IT company, half each. The company was making huge trading losses, but its intellectual property was of great interest to an American company. So the husband was in complex negotiations with the US buyers, while I was advising the wife’s family lawyers on company sale and purchase and tax planning issues etc, in a way which would not spoil the negotiations.

An order by consent was achieved and the sale went through. A couple of years later the husband reneged on the deal, and the wife had to sue for the final instalments of the amount due. She won. The case is reported as Wood & Rost [2007] EWHC 1511 Fam, and the first paragraph of the judgment reads: “If Charles Dickens were alive today, the twists and turns of this litigation, conducted at vast expense, would provide him with ample copy for a 21st-century sequel to Bleak House.”

Second, divorce the spouses but don’t ‘divorce’ the companies. A husband and wife were equal shareholders in two companies. One was a big waste transfer business and the other owned a huge gravel quarry. The wife’s lawyer proposed that a fair division of assets should start with the husband taking the waste business and the wife taking the quarry. I saw that as a daft proposal: where would the husband put his landfill, and how would the wife refill the quarry?

I saw that there was a ‘marriage’ between the two companies and that they should not be ‘divorced’. I valued the combined businesses; the husband took them out of the marriage and a settlement was reached whereby the wife took the matrimonial home and other assets to balance.

A clean break was achieved and the fundamental misunderstanding of the business by the wife’s lawyer was shown up.

Summary

In this article I have wandered through many kinds of cases, but the consistent theme is apparent. Of course you need an expert who can write a good report, has the knack of simplifying and knows how to give evidence (even in the hot tub – and I have!). But the moral every time is that, if you need an expert accountant, it must be one who understands the business. It’s a sine qua non. q • For Chris Makin’s CV, war stories and much more go to the website at www.chrismakin.co.uk – now with videos! www.yourexpertwitness.co.uk

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When ill health is caused by your work, there is redress [TO THE LAYPERSON the cry of ‘health and safety’ usually

indicates a representative of officialdom hiding behind discredited quasi-legislation to justify a disputed and unjustifiable decision.

The bête noir on all such occasions is the Health and Safety Executive, which is tasked with preserving the health and wellbeing of individuals in the workplace.

The overwhelming emphasis in the past has been the HSE’s role in preventing accidents and ensuring a safe workplace. In recent years, however, that emphasis has changed and there is now an increasing emphasis on wellbeing at work. In tandem with the Institute of Occupational Safety and Health, the HSE has focused on industrial

ill-health as well as safe practices. That ranges from industrial diseases of all kinds to mental health on site.

Two of the causes of ill health that attract most attention – and give rise to most litigation – are a range of diseases caused by asbestos and hearing loss caused by noise at work.

Noise-induced hearing loss is the most common occupational disease to give rise to claims. Asbestos-related disease is the most deadly. Most of us will have known someone who suffered the long and painful consequences of contact with asbestos in the workplace – mesothelioma, asbestosis, pleural plaques and the like.

This feature will concentrate on those two scourges. q

Asbestos hasn’t gone away – and it has to be managed [

LAST YEAR marked 20 years since asbestos was banned from use in construction in the UK; however, it is estimated that nearly one in four UK construction workers believe they may have been exposed to asbestos fibres. Despite the dangers, a third of workers responding to a survey carried out by the Institute of Occupational Safety and Health (IOSH) – including electricians, carpenters, joiners and roofers – have never checked the asbestos register before starting work on a new site. Nearly half didn’t even know there is a register! Almost one in five respondents said that if they discovered asbestos they wouldn’t be clear about what to do.

The survey was commissioned by IOSH to find out how much construction workers know about the hazard. Its findings were revealed on the day it

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launched its ‘No Time to Lose’ campaign to tackle asbestos exposure in the world’s workplaces. Britons have the world’s highest chances of dying from mesothelioma, the deadliest asbestos-related cancer.

Its chief executive Bev Messinger declared: “It is unacceptable that, 20 years on from asbestos being banned in Britain, organisations are still potentially putting at risk the lives of employees, their families and other members of the public. Courts fine some of the worst offenders, which causes significant commercial and reputational damage, but the human costs far outweigh the financial cost.

“Thousands die in Britain every year from cancers like mesothelioma, while many more are diagnosed with it. We must also consider the

families of those people who watch their loved ones suffer. All this is preventable through good occupational safety and health. It is time for organisations to wake up and realise how dangerous asbestos is. There are no excuses.”

With the banning of asbestos as a construction material, attention turned to managing its presence in the built environment. Almost every building constructed between 1910 and 1999 is certain to have contained asbestos, so the likelihood that those workers carrying out maintenance work or simply managing premises would come into contact with the substance remains high.

The Health and Safety Executive estimates that asbestos still kills around 5,000 workers each year – many of whom develop asbestosrelated diseases and cancers years after exposure.

In 2012 the regulations regarding asbestos were amended to form the Control of Asbestos Regulations 2012 (CAR 2012). Regulation 4 of CAR 2012 requires anyone who manages or is responsible for non-domestic premises to be aware of the possible presence of asbestos and to carry out a risk assessment.

According to the Asbestos Removal Contractors’ Association, the leading

trade body for those working with asbestos: “Awareness could help reduce the number of deaths from asbestos, as although the use of asbestos containing materials was banned in the UK in 1999, it is estimated that over two million workplaces still contain asbestos.”

The duty to manage asbestos is directed at those who manage nondomestic premises: the people with responsibility for protecting others who work in such premises, or use them in other ways, from the risks to ill health that exposure to asbestos causes.

Those workers can include a whole spectrum of tradespeople, such as plumbers, roofers, shop fitters, electricians, decorators, heating engineers and many more.

The HSE website contains a systematic guide to managing asbestos for dutyholders. The dutyholder can be ‘the owner of the non-domestic premises or the person or organisation that has clear responsibility for the maintenance or repair of non-domestic premises, for example through an explicit agreement such as a tenancy agreement or contract’.

Even the issue of what constitutes non-domestic premises can be complicated. It can include common areas of otherwise domestic premises, such as blocks of flats. q

Prosecutions show that the law on asbestos will be enforced [

THE RULES SETTING out responsibility to manage asbestos are among those being enforced with most vigour by the agency tasked with that enforcement – the Health and Safety Executive.

Enforcement action in the courts forms a shocking litany that shows no sign of abating, despite the serious consequences of their flouting. January alone saw three cases going before the courts, with defendants including a Cambridge college.

On 15 January HSE reported that Newnham College had been fined for failings that exposed employees and subcontractors to asbestos during refurbishment of a flat owned by the college.

Cambridge Magistrates’ Court heard that in March 2018, employees of Newnham College and subcontractors were carrying out a refurbishment of a flat on Grange Road, Cambridge when asbestos insulation debris was discovered in the floor voids after work had been carried out in them. No asbestos refurbishment survey was carried out prior to insulation debris being found. One employee, who contaminated his gloves and clothing with loose asbestos debris, did not have asbestos awareness training and spread asbestos from his clothing outside the flat.

The following day another case was heard, this time at Truro Crown Court. The court heard that during September 2017 a property in Island Crescent, Newquay (right) was to be partially demolished and refurbished under the control of one of its owners. The hotel had been left derelict for several years, allowing it to be subject to vandalism and squatting and had been soft-stripped by its owner. Asbestos surveys identified the presence of asbestos-containing materials, but they were not managed appropriately nor removed prior to the work.

The end of January was marked by a third case, where an employer in Lincolnshire was sentenced for failing to reduce the exposure and spread of asbestos when demolishing a large pig shed (left).

Amazingly the employer, a building contractor, had received the relevant training on how to remove non-licensed asbestos and had submitted a plan of work

to the client which included removing the asbestos sheets manually before demolition, which he chose not to follow.

Speaking after that hearing, HSE inspector Stuart Whitesmith said: “Asbestos-related disease still kills around 5,000 workers each year.

Asbestos is not just a problem of the past; it can be present today in any building or industrial process plant built or refurbished before the year 2000.” q

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Noise at work: the effects can be debilitating [DESPITE A SERIES of regulations governing exposure to noise

at work, there continues to be a steady flow of cases regarding noise-induced hearing loss (NIHL) caused by excessive noise in the workplace. There are two principal types of NIHL: the gradual loss of hearing caused by long-term exposure to loud noise, and the sudden loss of hearing caused by a one-off event.

The most common type of NIHL is the gradual loss of hearing caused by long-term exposure. In many cases the effects are not evident until some years after exposure. The loss of hearing is usually caused by damage to hair cells in the inner ear which convert sound waves into electrical impulses. The damage is irreversible.

The second type of NIHL can be caused by extremely loud bursts of sound, such as gunshots or explosions, which can rupture the eardrum or damage the bones in the middle ear. This kind of NIHL can be immediate and permanent.

The results of both types of NIHL can be an inability to work, socialise or even function properly.

Claims for NIHL against employers require a significant amount of documented evidence from experts in both the medical causes and effects of hearing loss and assessment of the likelihood of it having a specific cause. Expert evidence is key for both claimant and defendant. q

Could celebrated NIHL case herald a surge in claims? [ THE APPEAL COURT RULING in April last year in favour

of viola player Christopher Goldscheider, and the original hearing of his claim against the Royal Opera House (ROH) the previous year, brought the issue of noise-induced hearing loss to a wide audience for the first time.

Mr Goldscheider had been awarded £750,000 damages against the ROH for the ‘acoustic shock’ he suffered during rehearsal for Wagner’s Ring Cycle in 2012. The resultant distress, added to tinnitus, had left him unable to work, listen to music or perform some household tasks without ear defenders.

In the original judgement, which the appeal judges upheld, Justice Nicola Davies said: “The index exposure was the playing of the principal trumpet in the right ear of the claimant, whether it was one sound or a cluster of sounds of short duration. It was that exposure which resulted in the claimant sustaining acoustic shock which led to the injury which he sustained and the symptoms which have developed, from which he continues to suffer.”

Acoustic shock is a controversial condition. Most cases of NIHL in musicians result from a gradual decline over a long period – and it is estimated that musicians are four times as likely to suffer from NIHL than non-musicians.

Commenting on the case, Julie Moore of Taylor and Emmett LLP wrote: “It is perhaps surprising that similar claims to that of Mr Goldscheider have not been brought before the courts to date, the focus having been historically on the manufacturing sectors. This is probably because there has been no legal precedent to rely on. Mr Goldscheider’s case now provides that precedent.

“The consequence of this ruling will have an effect on the entire live music industry, and on pubs and nightclubs which play amplified music. This decision is likely to lead to a significant increase in claims being made against orchestras and other organisations by employees who have suffered acoustic shock.”

While the high-profile nature of the case brought the issue of NIHL to general public attention, the great majority of claims emanate from the manufacturing sector, as noted by Ms Moore.

The decline in that sector should lead to a gradual tail-off of claims, but the added attention provided by the Goldscheider case may reverse that. q www.yourexpertwitness.co.uk

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What an engineering expert needs in an NIHL case Finch Consulting is regarded as one of the leading providers of expert services dealing with personal injury claims relating to occupational exposure to noise and vibration. The firm has produced more than 10,000 reports in connection with these claims over the years.

In this article, its senior consultant TELI CHINELIS applies his expertise in preparing engineering reports in relation to noise-induced hearing loss (NIHL) claims, to explain the information that is required from the claimant, together with the information that is advisable to be retained by employers, in order to ensure that claims can be fairly represented.

[THE PAST DECADE has seen a

significant rise in the number of NIHL claims.

In 2010 the insurance industry was reporting around 24,000 claims annually and by early 2015 the reported annual number from the Institute and Faculty of Actuaries was 87,000, although that dropped to 57,000 claims annually by the end of 2015. The expert witnesses at Finch Consulting are almost always fully utilised and have been preparing more than 300 relevant reports annually for the past few years.

Affected industries

Claims used to come from traditional industries such as coal mining, manufacturing and ship building – where the claimant typically worked with the same employer for many years, if not their whole working life, and sources of noise were well understood. Nowadays we see cases involving claimants who have worked in a much wider range of sectors with multiple employers. The role of the engineering expert witness is crucial in cases involving multiple employments with significant noise exposure, in order to calculate the apportionment of the dose between the various employers.

Claimants have to be able to prove their hearing loss occurred at work and provide evidence that the employer has been negligent. Apart from providing estimates of the claimant’s likely daily noise exposure and lifetime noise immission levels, the engineering expert – who will have experience in risk management – also reviews any actions that the defendant should have taken in light of guidance and (after 1990) the regulations in place during the claimant’s employment.

Employer actions

Employers are legally and morally responsible for controlling noise in the

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“

Employers are legally and morally responsible for controlling noise in the workplace and protecting their employees’ hearing.

Loss of hearing is a very serious health and safety issue and insurers do provide compensation for genuine claimants.

”

workplace and protecting their employees’ hearing. Loss of hearing is a very serious health and safety issue and insurers do provide compensation for genuine claimants.

Employers must ensure they comply with the relevant regulations. The Health and Safety Executive (HSE) has valuable guidance, with a dedicated part of its website dealing with noise (www.hse.gov. uk/noise/). It includes HSE’s 130-page guidance document L108 (right).

The Control of Noise at Work Regulations 2005, in summary, require an employer to: • Assess the risks to employees from • noise at work • Take action to reduce the noise • exposure that produces those risks • Provide employees with hearing

• • • • • • • • •

protection if the noise exposure cannot be reduced enough by using other methods Ensure the legal limits on noise exposure are not exceeded Provide employees with information, instruction and training Carry out health surveillance where there is a risk to health.

Future proof critical documentation Employers are advised to retain relevant evidence for possible litigation defence. In particular, they are advised to: • Keep records of assessment and • actions to manage noise in a form that • will remain accessible and readable • When writing risk assessments and • purchasing policies, ensure that • they give sufficient information to allow • somebody in the future, who is • unfamiliar with the site, to understand • the processes taking place in different

• areas, likely noise levels and likely • noise exposures • Make sure that key decisions are • recorded in some form of change log • and, if a critical decision has • been made (eg capital spend for new • machinery), include evidence as to • why it was purchased, and the role • noise played in that decision.

They should retain evidence to demonstrate that, as recorded in the risk assessment, there is: • Control in place, including measures • taken to reduce noise at source and • provision and use of hearing protection • if required • Supervision and training • Health surveillance • Anyone at risk is managed as per • occupational health advice • Monitoring against actions described • in risk assessment – probably by cross • reference to quality procedures.

If a claim ensues

It is important for an employer to be able to disclose evidence about the noise management systems. For example, it may not have been noisy in the area where the claimant worked, but evidence which shows action had been taken to manage noise exposure elsewhere can demonstrate there was a system in place.

“

It is for the claimant to prove their case, but relevant evidence from a defendant can be very helpful to the engineering expert and the court. An absence of evidence from the defendant is unhelpful to the expert and the opinion will then be based only on the claimant’s case and any generic information available.

What is NIHL? [NIHL is hearing loss that is caused by exposure to sound. Such hearing

damage generally happens gradually, becoming noticeable over a number of years; but it can also happen very quickly, for example after exposure to noise from impacts or explosions. The damage suffered tends to be permanent.

In the UK it is estimated that there are more than 10 million individuals with some degree of hearing impairment or deafness. Over one million workers are exposed to levels of noise that put their hearing at risk, with 17% suffering hearing loss, tinnitus or other hearing-related conditions as a result of exposure to excessive noise at work. q

All the relevant information should be made available. Noise surveys are always helpful, even if not from the period when the claimant was employed, and witness evidence from current or past employees helps to put the disclosure in context, as does evidence that management of noise at work actions were conveyed to and understood by individual employees.

Considering future NIHL claims when writing current assessment and management documents will give you the best chance of defending these claims as quickly and cost effectively as possible.

What the engineering expert requires

The vast majority of the cases where Finch provides its services in occupational noise and vibration claims are on a joint expert basis. The duty of engineering experts is to the court and the provision or disclosure of relevant information from all parties can be of great assistance in order to provide an objective and unbiased report to the court.

From the claimant the expert requires: • Information about the claimant’s work, • including the tasks, working methods, • work patterns, machinery used or • operating nearby and the systems of work • Whether hearing protection was • provided, and if it was, when and what • type, and if the claimant used it • Information on the advice, training • or instructions the claimant received • in relation to occupational noise and/or • damage to hearing.

It is for the claimant to prove their case, but relevant evidence from a defendant

can be very helpful to the engineering expert and the court. An absence of evidence from the defendant is unhelpful to the expert and the opinion will then be based only on the claimant’s case and any generic information available.

It would be helpful for the engineering expert to be supplied with: • Confirmation or otherwise of the • claimant’s employment and evidence • regarding work and noise exposure • Evidence relating to action taken by the • defendant – at the material time, not later • – to control risk to the claimant’s hearing • Witness statements that will explain • the defendant’s case and show how • the defendant was managing risk, • referring as appropriate to disclosed • documents to demonstrate their relevance • – for example, identifying the parts of a • noise survey report relevant to the • claimant’s work.

Where the disclosure is extensive, witness evidence can identify the documents that are important and relevant and explain why. Even though medical records are not required, health surveillance records are useful. q • Finch Consulting is a professional services firm specialising in engineering, health and safety and environmental management. Its engineers, specialists and ex-regulators offer world-class advice, investigation, training and representation to clients in a very wide range of industries, including legal, financial and insurance, food and drink, leisure and entertainment, manufacturing, energy and waste, and defence.

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Welcome to our A to Z guide of the websites of some of the Expert Witness field’s leading players.

If you are one of our many online readers simply click on any of the web addresses listed below and you will be automatically directed to that particular website.

To get your website listed on this page just give us a call on 0161 710 3880 or email ian@dmmonline.co.uk Mr 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

Dr Thomas C M Carnwath

Mr Chris Makin

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

• Chartered Accountant • Accredited Civil Mediator • Accredited Expert Determiner

www.tomcarnwath.co.uk

www.chrismakin.co.uk

Mr Jeremy P Crew MA MD BChir FRCS

Mr Marcus Ornstein

Consultant Urological Surgeon Medical reports on all legal aspects of urology.

Reports in some cases based on hospital notes only.

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.oxfordurology.co.uk

www.marcusornstein.co.uk

Dr Lars Davidsson MRCPsych MEWI

Martyn Slyper

Consultant Psychiatrist and Accredited Mediator Reports within most areas of general adult psychiatry.

Specialist in PTSD, anxiety disorders & mood disorders.

Expert witness in Assistive Technology for Clinical Negligence, Personal Injury and Industrial Injury cases.

www.angloeuropeanclinic.co.uk

www.adapt-it.co.uk

Chris Dawson MS FRCS LLDip

Dr Gerry Robins MBBS FRCP MD PGCLTHE

Consultant Urologist with over 16 years experience of medico legal report writing and expert witness work in personal injury and clinical negligence cases.

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

www.chrisdawson.org.uk

www.drgerryrobins.co.uk

Emma Ferriman Ltd

Dr Elizabeth J. Soilleux MA MB BChir PhD FRCPath PGDipMedEd

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

Expert Witness Pathologist with a particular interest in haematopathology. Short reports on specimens, full court compliant reports and expert biopsy reporting.

Expert in Mind

Mr Bernard Speculand MDS FDS FFD FRACDS (OMS)

www.emmaferriman.co.uk

Providing the legal sector with leading experts in psychiatry and psychology

www.expertwitnesspathologist.co.uk

Consultant Oral and Maxillofacial Surgeon. Personal injury and clinical negligence cases for claimant, defendant and as Single Joint Expert. Special interest is TMJ Surgery.

www.expertinmind.co.uk

Yvette Young (Secretary) T: 0121 605 1884 E: info@medsecadmin.co.uk www.birminghamtmj.co.uk

Professor Parviz Habibi MB ChB PhD FRCP FRCPCH

Target Psychology Ltd

Consultant in Paediatric Intensive Care & Respiratory Medicine.

Specialist in treating respiratory conditions and sleep disorders as well as paediatric intensive care.

Adult and Child assessments within: • Public & Private Law Proceedings • Pre-Proceedings • Immigration Proceedings • Court of Protection Proceedings • Criminal Proceedings

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www.targetpsychology.co.uk T: 0161 425 1826

Translation association leads the way in standardisation [ NEW RESEARCH INITIATED by the Association of Translation

Companies (ATC) highlights the lack of standardisation in how UK public sector organisations accept certified translations, and the diverging practices adopted by producers of certified translations in the UK. David Gray’s dissertation from his Master in Applied Translation Studies and Interpreting at Leeds University is the first comprehensive look into the varied practices of certifying the translations of civil record certificates, diplomas and documentation used in areas such as legal proceedings.

The dissertation explores certification practices amongst ATC member companies, and individual translators who are members

Linguists seek role in UK’s new future [A KEY ELEMENT of The Queen’s Speech in December

was for the government to ‘work to promote and expand the United Kingdom’s influence in the world’, starting with a review into security, defence and foreign policy ‘covering all aspects of international policy from defence to diplomacy and development’.

That element of government policy prompted the Chartered Institute of Linguists (CIOL) to respond by urging the government to put languages and education at the forefront of any such review.

“In our multilingual world,” the CIOL said, “the demands of business, trade and human communication are more critically important than ever before. We depend on our armed forces, diplomats, police and security personnel to defend and protect us against international crime and terrorism.

“There is therefore an urgent need for foreign language learning which has its foundations in our schools and universities.”

Our communities are enriched by different languages and a diversity of cultures, the CIOL said, through which we can promote understanding and tolerance in pursuit of a more peaceful world.

The CIOL made a ‘strong plea’ to the government to put languages and education at the heart of its review into security, defence and foreign policy. To do that the government must ensure everything possible is done to persuade young people to recognise that learning languages can lead to valuable careers and that the resources are available to prepare them for work in those important areas. q

of professional UK associations. It identifies a distinct need for standardisation of those practices, through exposing the vastly divergent criteria within different public sector organisations when accepting translations. The situation is further aggravated by the government’s website, which makes no mention of the necessity to use a professional service to have a translation accepted by public service authorities.

One way for public authorities to ensure they are using an accredited translator is the ATC’s Certification Stamp, used by accredited members of the association. It is used to certify translations submitted to the public sector or other authorities such as the Home Office. The ATC is now publishing fully revised guidelines on the use of the Certification Stamp, for the benefit of its members, their customers and UK public service authorities.

The ATC’s Certification Stamp is awarded to accredited ATC member companies. It carries the member company’s name, membership number and the year awarded. The Certification Stamp acts as an assurance to the receiving authority that the translation has been carried out by an accredited member of the association, and that the translation is a true and accurate reflection of the original document.

It demonstrates that the company has passed the ATC’s strict membership vetting process, including checks on financial stability, quality management processes, client and supplier references, and that it also holds suitable professional indemnity insurance.

New Certification Stamp guidelines have been formulated as a first step in standardising practices. They set out best practice for certifying translations using the ATC’s Certification Stamp, provide standardised certification templates, and also explain the differences in ‘certification’ used in the UK and overseas.

The ATC’s vice chair Dan Peachey said: “These guidelines are vital. I have experienced first-hand how a certified translation has been accepted by a judge, only to be rejected by another, so clarity and a standardised practice is very welcome. We use our ATC Certification Stamp every day of the year.” q

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MEDICAL NOTES [AT THE TIME of writing the development and spread of the COVID-19 coronavirus is very much in the

air – both literally and figuratively. By the time you the reader are perusing this column the outbreak could have developed into a full-scale medical emergency or have passed its peak and everyone is breathing sighs of relief.

One of the first practical hurdles to emerge at the very start of the outbreak outside of China was a shortage of surgical face masks available to dentists. A combination of panic buying at home and a lack of supplies from China, where the masks are made, had led to supplies drying up for dentists in the community.

For once the government came good and released stockpiles amassed in case of need following Brexit.

• The added stresses on the NHS resulting from COVID-19 highlighted what was already a looming crisis in certain areas of practice. The British Orthopaedic Association has raised concerns on lengthening queues for joint replacement – again. The figures, this time from the charity Versus Arthritis, make sorry reading.

Tens of thousands of people have been waiting beyond the 18 weeks that the rules say is the maximum they should have to. Over two thousand have waited more than a year.

At the same time, a new regime is being implemented for revision replacement operations of knees. The more complex revision procedures will be carried out at a few specialist units around the country. The move has arisen from research showing that some smaller units, which only carried out a small number of the complex procedures, displayed limited expertise.

• A report by the Care Quality Commission shows that improvements can also be made to the way in which mental health services approach the human rights of people in their care. While the standard of care in general terms has improved in the past year, the particular issue of paying attention to people’s human rights who are detained under the Mental Health Act was found wanting.

• The mental health of people who live in apartment blocks covered in dangerous cladding and who have no immediate prospect of the cladding being removed has come to the attention of the British Psychological Society. The BPS says that those who are trapped in buildings they see as potentially deadly suffer particular stresses and need support from trained practitioners.

• The BPS has also issued guidance for psychologists working with refugees and asylum seekers.

Thousands of people have endured considerable distress and in many cases direct ill-treatment in order to reach a safe haven in this country. In too many cases they experience further ill-treatment once they have arrived here. Those who have suffered most may have developed complex PTSD, which requires expert treatment.

• Racism and other forms of abuse is an issue affecting a sizeable proportion of people working in the NHS. It beggars belief that the very people who devote their professional lives to helping the rest of us when we need help the most should be subjected to abuse while providing that help. The doctors’ union, the BMA, concurs with that view and has expressed its outrage.

• Barriers to doctors coming from abroad to practice in the UK was one of the targets of the GMC’s chief executive in a speech recently. Apparently, a doctor wishing to practice in the NHS has to provide 2,000 pages of evidence in support of their application. I confess to being astounded to learn that fact. No wonder many would-be NHS doctors don’t bother. q

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Give us the tools and we’ll do the job, GMC chief tells govt [THE CHIEF EXECUTIVE of the General Medical Council has called for an overhaul of legislation to allow it to perform its regulatory function more efficiently.

Speaking at a Westminster Health Forum event on 25 February, Charlie Massey pointed out that the GMC is required by law to investigate every complaint made against a doctor, even though in most cases no action is taken.

“Under current legislation,” he said “we’re obligated to look into every allegation that meets our threshold, even if it concerns a one-off mistake. And once an investigation is open we’re required to complete all prescribed steps, even if we know it’s likely that no further action will be required. The result is that around 80% of clinical cases are closed with no action taken.

“Since the Medical Act was passed, the volume of complaints we receive has increased dramatically: from around 350 in 1983 to well over 7,000 last year. The result is that we spend the bulk of our time processing complaints – the majority of which come to nothing – rather than focusing our resources on stopping doctors getting into difficulty in the first place.”

He also pointed to failures of systems that resulted in a lack of openness – citing the Paterson Inquiry as showing the damage that can result from doctors not feeling able to voice concerns.

“We want to give doctors the assurance that their actions will be seen clearly against the backdrop of any system failings. This matters because doctors who are scared that honest mistakes will be used against

them are not open when things go wrong – and that lack of openness can breed a culture where lessons are not learned when things go wrong.”

He added that reforming outdated regulation would ultimately benefit patient care, telling the audience: “The limits of regulation are now being stretched. Instead of red tape, we need responsive regulation.”

In the same speech Mr Massey also attacked the legislative burden placed on doctors from abroad wanting to work in the NHS. Doctors from outside Europe are legally required to provide up to 2,000 pages of evidence to the GMC before they are allowed to work as an NHS GP or consultant – a process that can take more than nine months. That results in far fewer coming here than we need. q

Doctors’ union forces U-turn in Wales [

IN A CASE that has wide-ranging repercussions for all doctors, BMA Cymru Wales has successfully defended a Welsh doctor against an attempted judicial review from their health board.

After refusing to accept the findings of an Upholding Professional Standards panel – known as in Wales as UPSW – a health board applied to the High Court for a judicial review of the panel’s decision regarding a BMA member’s employment.

UPSW is the disciplinary policy used to address concerns about capability, performance and conduct for all doctors employed by Local Health Boards or other NHS organisations in Wales.

While the case was brought directly against the panel convened under UPSW, it forced the BMA member in question to be part of the proceedings as an interested party to defend the panel decision.

That created unnecessary stress and anxiety for the doctor, as the outcome would have an impact on their future career.

The BMA viewed the move by the health board as being legally inappropriate. It threatened to undermine the process of UPSW and destroy the protections it is designed to give BMA members in

Wales. In particular, the claim could have established a new way for employers to overturn UPSW panels, which would considerably impact doctors in Wales in the future.

With support from the legal department, BMA Cymru Wales was granted permission to intervene in proceedings with the argument that decisions of the UPSW panel are not capable of being taken to judicial review. The panel plays an important, but limited, role in private employment matters; however, it does not exercise any public law functions so its decisions can’t be challenged in that way.

Less than two weeks after the intervention, the health board informed the court that they were discontinuing the claim. The proceedings were dismissed and the BMA member’s costs will be paid in full by the challenging health board.

BMA Cymru Wales national director Rachel Podolak said: “We’re proud we were able to intervene and help resolve the situation for our member. It will stand as a way of discouraging other health boards from undermining the UPSW inquiry panel in the future, allowing all doctors to continue to undergo a fair process.” q

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More than a quarter of NHS staff have been harassed [

MORE THAN one in four NHS employees have said they had experienced harassment, bullying or abuse from patients, relatives or members of the public during the course of last year. Almost one in seven (14.9%) experienced physical violence and almost 40,000 said they faced discrimination from patients over the last year.

The figures arose from the NHS Staff Survey 2019 and prompted outrage from the British Medical Association.

Dr Helena McKeown, a BMA chief officer, said: “It is an intolerable situation when doctors – and all NHS staff – working above and beyond to provide high-quality, compassionate care to patients face violence and abuse from the very people they are treating.

“While rising workloads and under-staffed working environments can lead to long waiting times and frustrations for patients and their loved ones, there is absolutely no excuse for this to be taken out on dedicated staff, who only want the best for their patients.”

Racism was the most common form of discrimination, but 2019 also saw the highest levels of reported sexism and intolerance of religion and sexuality.

Dr McKeown added: “Violence and abuse have a hugely detrimental impact on both the physical and mental health of staff – and this in turn can make pressures worse, as overstretched hospitals and other providers have to deal with – and pay for – sickness absence.

“It’s particularly upsetting to see that BAME

Mediation is what you need, claims body finds [NHS RESOLUTION has undertaken an evaluation of its claims mediation service in

order to determine mediation’s efficacy as a resolution tool and understand when mediation is most effective as an intervention.

The exercise found that mediation is proven to be an effective forum for claims resolution, by providing injured patients and their families with the opportunity to receive face-to-face explanations and apologies. The process provides a platform to claimants, patients and their families to articulate concerns that would not ordinarily be addressed in other forms of dispute resolution.

The study found that 74% of cases mediated are settled on the day of mediation or within 28 days of the mediation date.

Positive and compelling feedback was received from participants in the process and there was found to be heightened awareness of the benefits of mediation for claims resolution and increasing demand for its use by members and other stakeholders.

Julienne Vernon, head of dispute resolution and quality at NHS Resolution, said: “Mediation puts the patient/claimant at the heart of the claim, focusing on concerns which are very often not ‘all about the money’, and would not be possible to address in any other dispute resolution setting, such as a meeting with just the lawyers.” q

doctors continue to suffer from discrimination and abuse more frequently than their white colleagues – and not only that, but the situation is getting worse. This behaviour must be stamped out.

“The NHS could not survive without the incredible contribution of BAME doctors, and we all owe them a huge debt of gratitude – and the NHS owes them a duty of care.”

The new figures come as NHS leaders confirmed that from April, under NHS England’s new Standard Contract rules, NHS services will be able to protect staff by barring from non-emergency care any patient or visitor who inflicts discriminatory or harassing behaviour on staff.

Previously, individual NHS organisations could only refuse services to patients if they were aggressive or violent.

Dr McKeown pointed out that the situation could be even worse than those figures show.

She said: “It’s important to note that this survey does not include staff working in primary care, and we know from our GP members that they face similar issues, whether they are working in practices or putting themselves at risk when visiting patients at home.

“All staff must feel confident coming forward when they are subject to abuse or harassment, and must do so in the knowledge that something will be done. This means creating a more supportive environment that is fair and rooted in equality and respectfulness, advocating for all staff and taking decisive action when they are subject to abusive behaviours.” q

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Complex regional pain syndrome and fibromyalgia: recent evidence on causes and diagnosis [COMPLEX REGIONAL PAIN SYNDROME (CRPS) and fibromyalgia

(FM) are both chronic pain conditions, but whereas CRPS is restricted to one specific area of the body, FM is characterised by widespread pain.

Neither condition is well-understood in terms of causation, and diagnosis is based on subjective reporting of signs and symptoms by the sufferer.

However, research is shedding new light on the possible causes of these diseases, which may lead to definitive diagnostic tests becoming available in the future.

Fibromyalgia

In 2016, the criteria for diagnosis of FM were revised and ‘generalised pain criteria’ introduced, defined as pain in four out of five possible painful body regions. This change now excludes regional pain syndromes from the diagnosis of FM. Further work by the ACTTION-APS Pain Taxonomy initiative – a collaboration between Analgesic, Anesthetic and Addiction Clinical Trial Translations Innovations Opportunities and Networks and the American Pain Society – has allowed the identification of four possible classes of the condition. This suggests that FM represents a continuum in which pain in the central nervous system becomes more centralised as the disease progresses and other symptoms, such as anergia, memory loss and sleep disturbance, develop.

Much of the recent research into the causes of fibromyalgia has centred around neuropathies, particularly small fibre neuropathy (SFN).

These appear to occur with relatively high frequency in FM patients and are represented by a reduction in dermal unmyelinated nerve fibre bundles in skin biopsy, increased temperature detection thresholds in sensory testing and hyperexcitability of nociceptors, the sensory receptors for painful stimuli.

Additionally, a study of large fibre neuropathy found that 90% of patients with FM only exhibited a demyelinating and/or axonal sensorymotor polyneuropathy and 63% had SFN, suggesting that mixed fibre neuropathies are predominant in FM. Electromyograph evidence of nonmyotomal axonal motor denervation of the lower limbs, found in a high proportion of patients, was a suggested cause of the polyneuropathy.

The presence of rheumatoid arthritis (RA) alongside the FM did not alter these findings, but a comparison group, without either condition, showed no pathologic findings at all.

One of the major issues in the diagnosis of FM is the lack of a reliable biomarker but there have been several recently reported breakthroughs in this field which may prove to be clinically useful. Recent research has identified particular miRNA profiles in blood, saliva and cerebrospinal fluid which have the ability to diagnose and characterise FM. Whilst encouraging, these studies took place in small populations and will need to be validated in larger cohorts. Furthermore, proteomic analysis of whole saliva and plasma showed increased expression of numerous proteins compared to subjects without the condition. This suggests that there may be a distinctive inflammatory protein signature in FM, which is possibly related to a neuroinflammatory process.

Further evidence for an inflammatory pathway in the causation of FM comes from a report of lowered levels of interleukin-10 in the serum of women with FM, regardless of age, body mass index and comorbid conditions.

Similarly, metabolomics may provide valuable biomarkers for diagnosing the presence of FM. The authors of a study describing analysis of lowmolecular weight fraction metabolites of human blood were able to identify FM patients and discriminate them from patients with systemic lupus erythematosus (SLE) or RA without misclassification. Aromatic and

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carboxylic acid molecules, such as tryptophan and its metabolite serotonin, appeared to be particularly important as potential biomarkers and this has been borne out by observations in other studies and the common use in FM treatment of selective serotonin uptake inhibitors.

However, although serotonin may be useful in the diagnosis of FM, it does not appear to be related to the severity of the disease. A study in women showed that while serotonin levels in blood were reduced in FM sufferers, there was no correlation with clinical manifestation. However, another study identified biomarkers, including protein backbones and pyridine-carboxylic acids, which not only discriminated FM sufferers from patients with RA, osteoarthritis and SLE, but were correlated with FM pain severity.

One feature frequently described in FM is an abnormality of the central nervous system and neuroimmune activation may be a potential mechanism for this observation. A combined Swedish and US research group has recently demonstrated the presence of activated glia, and consequently active neuroinflammation, in the brain of FM patients.

An increased uptake of the radioligand that binds to 18-kDa translocator protein (TSPO) was particularly evident in areas of the brain that have previously been implicated in FM. TSPO expression is normally low in healthy brain tissue but is upregulated in activated glial cells that have undergone inflammatory stimulus. These findings strongly suggest an association between neuroinflammation and FM.

Complex Regional Pain Syndrome

Recent research in CRPS has also centred around the role of inflammation in the condition, and in particular the role that potential biomarkers of inflammation may play in diagnosis and management. Gene analysis has shown that immune-related genes previously linked to CRPS are differentially methylated in patients with CRPS compared to those with non-CRPS neuropathic pain. Methylation changes the activity of DNA segments and typically acts to repress gene transcription, the first step in gene expression.

Furthermore, a study of the role of autoantibodies in CRPS found that they are commonly present in patients with the condition and the level appears to be correlated with the severity of pain experienced by the patient. Experiments in mice indicate that the autoantibodies maintain the painful hypersensitivity characteristic of CRPS by sensitising A and C nociceptors, while the peptide CTK 01512-2 can reverse allodynia, both in the acute and chronic phases of the disease.

In humans, expansion and activation of several distinct populations of T lymphocytes, participants in the immune response, has been demonstrated in patients with CRPS. Compared to healthy controls, the levels of some cell groups were increased five-fold. This increased activation of pro-inflammatory signalling pathways may be indicative of ongoing inflammation and cellular damage in CRPS. It has also recently been demonstrated that limb nerve trauma releases a proalgesic immunodominant myelin basic protein fragment which is homologous to muscarinic-2 acetylcholine receptor, thought to be involved in the development of CRPS. Activity of the proalgesic myelin basic protein is prevalent in females and may explain why the occurrence of CRPS is also higher in women.

Alterations in physiological trauma recovery may also be important in the development of CRPS. Compared to control patients with fractures, CRPS sufferers appear to be more sensitive to pinprick pain and blunt pressure on their affected side. Fracture controls have a higher level of immunobarrier-protective factors compared to patients with CRPS or healthy controls, and low levels were particularly observed in subjects with

oedema, suggesting barrier breakdown. It seems likely that while normal healing includes some CRPS signs and symptoms, a combination of different factors distinguishes the condition from fracture controls.

One of the features of CRPS is a discrepancy between a patient’s subjective perception of temperature and objectively measured temperature. Therefore, the diagnostic validity of temperature measurements is questionable. However, perfusion index (PI), which is derived from pulse oximetry, a test used to measure the oxygen saturation of the blood, may be a more reliable indicator.

Variation in PI is reported to be significantly larger in CRPS patients compared to healthy controls, while variation in temperature shows no difference between the two groups. PI also accurately reflects subjective thermal symptoms and is far superior to simple temperature measurements in this respect.

Despite recent advances, none of these potential diagnostic tests are currently sufficiently validated to be introduced into clinical practice. However, exosomal miRNAs appear to be good candidates for potential biomarkers due to their stability and their known dysregulation in diseases such as CRPS. Much of the recent evidence suggests that FM and CRPS are immunological conditions, with disruption to the levels of cytokines and chemokines, lipid mediators, oxidative stress and plasmaderived factors possibly responsible for the inflammatory response underlying these diseases, although the pathways are still not fully understood. Concentrated research in this area may identify other biomarkers which could be used to provide a reliable means of diagnosing these challenging conditions. q • Medicolegal Partners have two medicolegal experts who are consultants in pain medicine, Dr Chris Jenner MB BS FRCA FFPMRCA and Dr Ivan Ramos-Galvez LMS FRCA FFPMRCA.Visit the website at www.medicolegal-partners.com to download their CVs and to instruct either expert, or to discuss a case, please call 020 7118 0650 or email info@medicolegal-partners.com

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Make sure to discuss potentially catastrophic complications when taking consent

by Dr NIGEL KELLOW MB BS FRCA MBA, consultant in interventional pain medicine at The Wellington Hospital in London

[

DOING clinical negligence expert work has made me meticulous about how I take consent. While most of the risks of the procedures I do are relatively minor, there is the rare risk with some procedures of catastrophic complications such as stroke, paralysis and death.

One of those procedures is the injection of steroids through a nerve root channel in the neck – a procedure called a transforaminal steroid infiltration. Although the likelihood of a severe complication happening is low, with the outcome being potentially so devastating there is a high chance of an attempted negligence claim; and there will be a number of things for the experts and court to consider.

For example, although steroids have never been licensed for injection into the spine, they have been standard medical practice around the world for decades because they generally work. Also, there are numerous subtle technical aspects to the procedure that can increase or decrease the risk – such as the diameter of the needle, the shape of its tip, the type of steroid used (whether it’s a suspension of particles or a transparent solution), the needle trajectory and the mode of imaging.

Another factor to consider is that the procedures are done by two groups of specialists – interventional pain physicians and interventional radiologists – and they do them in completely different ways.

Typically, pain physicians will use real-time X-ray fluoroscopy and non-particulate steroids. Radiologists will use CT and many will use particulate steroids. There are arguments for and against X-ray vs CT, but the evidence of the risk of stroke or spinal cord infarction being caused by particulate steroids is sufficiently strong that it would now be considered indefensible for a pain physician to use particulate steroids.

However, it took several years for interventional pain medicine to make the transition from particulate to non-particulate steroids.

Interventional radiology is currently going through the same process of switching, but I still see patients who have had particulate steroids injected around nerve roots in their neck. Were any of them to suffer a catastrophic complication, amongst the matters for the court to consider would be the different approaches to the identical procedure done by two specialties.

Another matter for the court to consider would be the process of consent. Interventional radiologists generally don’t have access to outpatient clinics. They often have lists with a number of patients they’ve never met before, scheduled for procedures where the risks are low-ish, but with which, if a complication were to happen, it could be catastrophic. They typically have just a few minutes to gain the patient’s consent. Their record of consent is likely to be handwritten on a standard hospital consent form and their patients won’t have been afforded time to reflect, research their options, or change their minds.

Poor practice around consent is a common theme running through almost every negligence claim I’ve been involved in. I don’t think I have ever seen a consent that I can say has been exemplary and the curve is heavily skewed towards the ‘appalling’ end of the distribution.

But with the focus on Ian Paterson’s disgraceful consent practice and the imminently forthcoming revised GMC recommendations about consent – which may well be out by the time you read this – we are likely to see demand for significant changes in the consent process.

We don’t yet know what changes there may be, but it is likely that there will be increased focus on recording the risks discussed and in allowing patients time to reflect, research and reconsider. It will also hopefully hasten the development of outpatient consulting facilities for my colleagues in interventional radiology. q

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Royal College responds to BBC hernia mesh claims [THE ROYAL COLLEGE OF SURGEONS has issued a statement

on the use of mesh in hernia operations. The statement is in response to a BBC Victoria Derbyshire programme broadcast on 15 January revisiting the subject. The programme first raised concerns on their use back in 2018.

In its response the RCS said: “It is sadly the case that around one in 10 patients experience pain following an inguinal hernia repair.

Recent studies suggest the risk of pain following an inguinal hernia repair is similar, regardless of whether the operation uses mesh or the alternative non-mesh operation. If you are one of those affected, it is incredibly distressing, and you should certainly return to your doctor and seek further help.

“The dilemma is that doing nothing also has its risks, such as reduced mobility and/or pain. As surgeons, our duty is to explain the options and risks to patients, so they can weigh them up and decide what the best course of action is for them. Surgeons should always include the option of doing nothing as part of the range of options.

“However, many patients do want an operation, even knowing the risks. This is because untreated groin hernia can become increasingly painful, especially with sport and exercise or heavy lifting. There is also the possibility of the hernia becoming stuck, or worse, the bowel getting stuck in it, and having its blood supply literally strangled.”

In the Victoria Derbyshire programme it was claimed that more than 100 different types of mesh were being used in the NHS with ‘no clinical evidence’ of their safety.

The programme interviewed a woman from Glasgow who had suffered severe debilitation following an operation to implant a mesh.

She was one of nearly 300 people who had contacted the programme having experienced complications – including chronic pain, infections and organ perforations.

The BBC quoted the director of devices at the Medicines and Healthcare products Regulatory Agency, Graeme Tunbridge, who said: “The benefits and risks of using mesh for hernia repair have been considered in detail by clinicians and the

professional bodies who represent them. We continue to monitor and review evidence as it becomes available and will take any appropriate action on that basis.”

It is understood new legislation on medical devices will be brought forward in May. The RCS continued: “The surgical community is continually working to improve techniques and to better understand the effects of different procedures. There have been a number of scientific studies looking at the use of mesh in hernia repairs. In view of patients’ experiences we are keeping a close eye on emerging evidence and studies, to ensure our guidance and understanding of the risks remains current.

“The Royal College of Surgeons of England is also campaigning to improve regulation and monitoring of new devices and implants.

Together with the British Hernia Society, we are calling for a mesh registry to help track and understand the effects of mesh following operations.” q

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Half of cardiac patients missing out on rehab [

A NEW REPORT has revealed that half of heart patients in the UK are missing out on vital recovery care that could prevent them dying prematurely. The essential care – known as cardiac rehabilitation – comprises a programme of exercise, education and psychological support.

It is recommended for people after a heart attack, coronary angioplasty and heart surgery, and is also suitable for some people with angina or heart failure.

However, latest figures reveal that 68,000 out of 136,000 people eligible for cardiac rehabilitation in England, Wales and Northern Ireland in 2017/18 did not receive it. The figures emerged from the 2019 National Audit of Cardiac Rehabilitation (NACR) report, funded by the British Heart Foundation (BHF) and carried out by the Department of Health Sciences at the University of York with support from NHS Digital.

While there has been important progress in improving the quality of recovery care, the uptake rate has remained at around 50% year-on-year. That is far below ambitious goals to improve rates across the UK; for example, NHS England aims for 85% of eligible patients to take part in cardiac rehab programmes by 2028, as laid out in its Long Term Plan.

John Maingay, director of policy and influencing at the BHF, said: “These figures should give us all pause for thought. We know cardiac rehabilitation can save lives, but the static uptake rate suggests that it isn’t accessible or flexible enough to work for everyone, or that its benefits are not being clearly enough explained to patients.”

The BHF says that uptake will remain static until more innovative, person-focused ways of delivering cardiac rehabilitation are tried and tested. That will build on the strong successes of cardiac rehabilitation services to date, while making options more personalised.

John Maingay continued: “It’s clear we now need more than ‘business as usual’. Unless we develop bold new ideas for promoting and delivering this recovery care, tens of thousands of people will continue to miss out.

“More tailored cardiac rehab choices need to be made available, so that patients can choose the best option for their preferences, motivations and needs.”

Indeed, evidence from clinical trials suggests that programmes focused around the person rather than the service, such as through a digital or home-based programme, can be as successful as groupbased programmes. Yet fewer than one in 10 cardiac rehab patients are taking up home-based options, compared to three in four that are attending group-based sessions.

NACR director Professor Patrick Doherty explained: “For many people, group-based cardiac rehab works. However it’s crucial we don’t rely on a one-size-fits-all approach.

“To see a significant rise in people taking up this vital recovery, we want to see cardiac rehabilitation designed around people’s needs that gives them access to a range of options that work for them, including home-based and digital programmes.” q

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Lymphoedema – swelling of the limbs

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

[ THE CIRCULATORY SYSTEM comprises arteries which carry

blood from the heart to the tissues of the body, and the veins which bring the blood back to the heart. However, a third system of vessels, the lymphatics, is also crucial in maintaining the wellbeing of the body, especially the limbs.

As far as the circulation of the blood is concerned, these lymphatics have an important function in collecting water which escapes from the capillaries as the blood passes through the tissues. This reaches the spaces between the cells (interstitial space) and is collected via the lymphatic capillary vessels.

The actual volume of the fluid, known as lymph, which is collected this way is a small fraction of the total blood flow to the

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body. The heart pumps about 5L of blood per minute through the arteries, but only about 2L of fluid is eventually returned to the veins by the lymphatic system. Much of this lymphatic flow comes from the intestines.

From the legs, the lymph passes upward in the lymphatic trunks and then via the back of the abdomen and then the chest. The lymph is eventually returned to the venous system at a point when the thoracic duct (lymph) joins the left subclavian vein from the arm.

A further important function of the lymphatic system is participation in the immune defences of the body since it carries the blood cells which detect foreign material and mount an immune response.

What can go wrong with the lymphatics?

In clinical medicine the most common malfunction of the lymphatic system is lymphoedema, swelling of the peripheries, which affects part or all of a limb. The lymphatic vessels are very fine and may be damaged by infection, for example. This can happen spontaneously when bacteria enter the skin via a small abrasion and cause a severe infection, known as cellulitis. The immune system collects and destroys the bacteria which enter the lymphatic vessels. The lymphatic system may be badly damaged during such an encounter with the lymph vessels, becoming permanently destroyed.

Trauma is another mechanism of injury. Although I have seen lymphoedema arising from accidental trauma suffered in a road traffic collision, surgical injury is more common in my experience.

In some apparently minor operations, the lymphatic vessels lie close by. In varicose veins surgery, the superficial lymphatic trunks lie close to the saphenous veins and may be irreversibly damaged during old-fashioned varicose veins surgery (stripping operations).

Cancer surgery in which the lymph nodes are removed as a deliberate strategy to cure cancer may lead to impairment of lymphatic function in the limb drained by the lymphatic system.

Radiotherapy given as part of cancer treatment may also cause damage to the lymphatic vessels.

The consequence of damage to the major lymphatic vessels is lymphoedema. The water and associated protein which leak from the capillaries are no longer efficiently drained from the limb. The limb becomes ‘water-logged’ or affected by oedema. Swelling is the main clinical feature of this condition, and most severely affects the distal part of the limb. In the lower limb the foot becomes swollen and this may also affect the ankle and calf. In severe cases, the whole limb becomes swollen.

Is lymphoedema after surgery the result of negligence?

Patients undergoing varicose veins surgery do not usually expect to encounter a permanently swollen limb following their treatment. These days, minimally invasive treatments are available which avoid surgical dissection in the region of the main lymphatic vessels and are to be preferred to varicose vein ‘stripping’ operations, avoiding the likelihood of lymphatic damage.

Were lymphoedema to occur following a varicose veins ‘stripping’ operation, the claimant could argue that a minimally invasive treatment should have been used instead and would have avoided the occurrence of lymphoedema. I have advised claimants in a number of such cases.

Cancer surgery may necessitate removal of lymph nodes, such as in the management of breast cancer where removal of axillary lymph nodes is considered to be needed. In these cases, lymphoedema affecting the upper limb is an expected adverse event arising from treatment and patients should receive detailed advice about this risk and the post-treatment management of the arm to minimise the risk of lymphoedema. I have seen cases of lymphoedema affecting the lower limb when pelvic lymph nodes have been removed during radical surgery for cancer of the uterus.

Management of lymphoedema

The occurrence of lymphoedema leads to the need for lifelong management of limb swelling. In many cases, an elastic compression stocking is sufficient to moderate the swelling in the lower limb. Compression sleeves and gloves are also available to reduce swelling in the arm following breast cancer surgery.

In more severe cases, lymphoedema bandaging provided by a lymphoedema specialist is required to control swelling. Lymphatic massage is another useful modality of treatment.

In the longer term lymphoedema, once established, tends to persist for the rest of the patient’s life. Lymph flow may find alternative routes to return to the venous system, but these are never as efficient as before lymphoedema occurred. Surgical

A limb affected by lymphoedema. The foot is the most severely affected region treatments to join lymphatic vessels to the local veins have also been described and have limited efficacy in more severe cases.

Conclusions

Lymphoedema may arise following severe bacterial infection or after surgical intervention in some cases. Where surgical treatment was inappropriate and alternative methods of treatment are available, the claimant may argue that life-long lymphoedema would have been avoided with more appropriate treatment.

In the management of cancer, lymphoedema affecting the upper limb after breast cancer surgery is a known adverse event and patients should receive appropriate counselling concerning this possibility during the consent process. q www.yourexpertwitness.co.uk

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Maternity units show improved safety performance [

NHS RESOLUTION has published year two results of its maternity incentive scheme, which it launched at the end of 2017. Under the scheme, trusts that successfully achieve all 10 of the safety actions specified recover not only their contribution to the maternity incentive fund, but also a share of any unallocated monies. Unsuccessful trusts are provided with support to deliver action plans to help meet their outstanding safety actions.

For year two of the scheme, the safety actions focused on areas such as the implementation of the Saving Babies’ Lives care bundle, having effective workforce planning systems in place within trusts, maternity emergency training, listening to and acting on patient feedback and regular meetings between trust safety champions and boards to escalate locally identified issues.

In 2019, 117 trusts achieved all 10 safety actions, representing a significant uplift on the results of the previous year. On a regional basis, all trusts in London and the South West met all 10, followed by 94% of trusts in the North West, 91% in the North East and Yorkshire area, and 89% in the South East.

Maternity claims represent around 10% of the total number of clinical negligence claims received by NHS Resolution each year, but account for 60% of the annual £9bn cost of harm in relation to the Clinical Negligence Scheme for Trusts.

Incidents occurring during maternity have a significant life-long impact on affected patients and their families and are traumatic for the NHS staff involved.

The safety actions that trusts are required to meet as part of the maternity incentive scheme are updated each year and developed

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in partnership with NHS England’s two national maternity safety champions and other key stakeholders, such as NHS Digital, the Royal College of Obstetricians and Gynaecologists and the Royal College of Midwives. The aim of the safety actions is to improve patient outcomes and reduce costs, freeing up resources for frontline patient care.

Other highlights from this year’s report show that 100% of trusts were able to demonstrate the implementation of a comprehensive patient feedback mechanism within maternity services – which included acting on feedback received – and improvements in compliance with all four elements of the Savings Babies’ Lives care bundle.

Following the extremely positive second year results, NHS Resolution has launched the maternity incentive scheme for a third year. q

Neonatal mortality: it’s a complex picture [ON 20 FEBRUARY the Office of National Statistics published a blog

by its senior research officer for health and life events Gemma Quayle, discussing the latest trend which has seen the neonatal mortality rate increase slightly in recent years, while stillbirths continue to decline.

One explanation she offers is a result of more babies being born alive before 24 weeks. She writes: “Since 2010, despite a fall in the overall number of births, there have been more live births at under 24 weeks gestation.

“Sadly, although more babies under 24 weeks are born and assessed as showing signs of life, most only survive a short time.

Two thirds of babies born with signs of life under 24 weeks die within a day of being born, and over 80% do not survive the neonatal period. These babies appear in both our birth and death statistics, but if they hadn’t been assessed as showing signs of life, they would not appear in either.

“We can check the impact this has on the overall trend by looking at neonatal deaths for babies born at 24 weeks or over. For this group we do not see an increase, so the recent rise in the overall rate can clearly be accounted for by the group of babies born before 24 weeks.”

While that anomaly accounts for the increase in neonatal rates, it does not explain the stalling of the rate for births after 24 weeks, while that of comparable countries continues to fall. Explaining that will take more research. q

What are the medico-legal implications of bowel injury during gynaecological surgery?

ELLIS DOWNES FRCOG, consultant obstetrician and gynaecologist, offers the benefit of his long experience

[

AS A GYNAECOLOGIST who has been performing surgery for nearly 30 years, and an experienced medico-legal expert, I am well aware that injury to the bowel carries a risk of causing significant patient injury, and possibly death – and may often result in a claim.

In the pelvis, by virtue of their close relationships, the uterus, fallopian tubes and ovaries are close to both the small and large bowel. Generally speaking, while they may often be in contact, the bowel is not normally attached to the uterus and ovaries and can be easily moved during gynaecological surgery.

In the presence of disease, either bowel or gynaecological, scar tissue – adhesions – can develop which can cause the bowel to become attached, sometimes densely so, to the gynaecological pelvic organs. In gynaecology, the most common problems we see which cause that are endometriosis, a benign inflammatory disease or infection. Common bowel problems causing dense adhesions include diverticulitis or malignancy.

If the bowel is stuck to the uterus or ovaries, patients may have significant pelvic pain, pain during sexual intercourse and possible infertility. Under those circumstances it is appropriate to offer a laparoscopy, where a telescope is put through the umbilicus under general anaesthetic, to diagnose the problem more accurately than pelvic examination or an ultrasound scan, and if necessary to divide the scar tissue – the adhesions – to ‘free up’ the organs and try to restore normal anatomy.

While doing that, the plane of cleavage between the bowel and, say, the uterus will be identified, and using a combination of sharp (scissors) and blunt (careful pressure) dissection, the bowel and the uterus will be separated from each other. If the scar tissue is thick and everything is very ‘stuck’, it can be easily understood how it may be possible to accidentally make a hole in the bowel. If that is not recognised and immediately repaired, bowel contents will spill out into the peritoneal cavity, causing peritonitis, sepsis and ultimately organ failure and death.

Most cases of bowel injury are recognised at the time of surgery; however, a recent systematic review of bowel injury at laparoscopy (Llarena, 2015) noted that 41% of bowel injuries were diagnosed more than one day after surgery. Failure to diagnose a bowel injury at index surgery, therefore, is not a breach of duty.

Bowel injury is thankfully rare; the approximate incidence is 0.15%. It is self-evident that the risk of bowel injury increases with surgical complexity: a straightforward diagnostic laparoscopy has a lower risk of bowel injury than a laparoscopic hysterectomy (roughly 0.02% compared to 0.4%). Like most complication rates, those figures almost certainly represent a lower-than-actual risk due to under-reporting.

With a high risk of possible bowel injury, the prudent gynaecologist will aim to operate with their bowel surgical colleague, so that if it does occur and is recognised, it can be immediately repaired.

If bowel injury occurs with normal anatomy at open or vaginal surgery, ie the bowel is not stuck to the uterus or other pelvic organs, in my experience the complication is difficult to defend.

A bowel complication is devastating for the patient – and surgeon.

Often, sadly, when undertaking medico-legal reports it is clear that not only has the complication occurred, but the subsequent management of the complication has been poor: delayed diagnosis, poor involvement of senior staff, late involvement of bowel surgeons, inappropriate surgery performed to repair the bowel damage. All of

those factors can increase ITU admission rates, the risk of wound dehiscence, sepsis and ultimately death.

When considering whether a bowel injury is defendable of not, I use the following checklist list as a guide: • Consent: Was the patient fully informed in relation to the • Montgomery ruling? Was the surgery appropriate?

• Consent form: Was the patient clearly warned about the risks of • bowel injury? Were they provided with documentation/leaflets?

• At laparoscopy, was a recognised technique used?

• Was it a normal pelvis, or were there extensive adhesions?

• Was there good documentation of operative procedure?

• Post-operatively, were any deviations from normal recovery picked • up quickly?

• Was there the appropriate involvement of bowel surgeons?

• Was there any evidence of delay in recognising and managing • bowel injury?

It is not for me as a gynaecology expert to comment on the colorectal management of a bowel injury, and in my experience instructing solicitors are generally good at involving both gynaecology and colorectal experts to advise, after a bowel injury at gynaecological surgery, whether an allegation of negligence can be supported. q

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Mental health services must address human rights issues [HEALTH SERVICES NEED to improve the way they provide care

and treatment for people detained under the Mental Health Act (MHA) in a way that respects their human rights, the Care Quality Commission (CQC) has found.

A CQC report, Monitoring the Mental Health Act in 2018/19, has found that there has been an improvement in the number of people being given information about their rights and being offered the support of an independent mental health advocate. However, the report concludes that services need to do more to ensure that they are complying with their human rights duties.

The Mental Health Act 1983 is the legal framework that provides authority to detain and treat people who have a mental illness and need protection, for their own health or safety or the safety of other people.

CQC has a duty to monitor and report on how services do that.

Throughout 2018/19, CQC carried out visits to mental health wards to meet patients, review their care and speak to staff, to inform its annual report to Parliament on how health services in England are applying the MHA. It concludes that human rights principles and frameworks must be applied and their impact on people continuously reviewed and updated to improve people’s experience and make sure they are protected and respected. People must be supported, it says, to give their views and offer their expertise when decisions are being made about their own care and treatment. Providers must take that seriously and look for evidence that it is being done across their services.

People who are in long-term segregation can experience more restrictions than necessary and experience delays in receiving independent reviews of their situation: that is particularly true for people with a learning disability and autistic people.

However, people are not always receiving the care and treatment they need, with services struggling to offer appropriate options, both in the community and in hospital; and it is difficult for patients, families and carers to navigate the complexity of the interface between the MHA, the Mental Capacity Act 2005 and the Deprivation of Liberty Safeguards.

Dr Kevin Cleary, CQC’s deputy chief inspector for mental health and community services, said: “When a person is detained under the MHA, it is essential that healthcare services apply human rights principles to ensure that the person is treated with dignity and respect. Through our review of use of the MHA over the past year we have been concerned to find that frequently that is not the case.

“The use of the MHA continues to rise and the overrepresentation of some black and minority ethnic groups is a particular cause for concern. More needs to be done nationally to address issues of inequality, but providers also have a responsibility to oversee how the MHA is working – including any impacts on human rights and equality issues.

“Positively, we have seen a continued improvement in the number of people being given information about their rights and being offered the support of an independent mental health advocate. However, providers must do more to involve people in decisions about their care and treatment and ensure that this is happening in their services. We also want to see regular and independent reviews of the care being provided to people who are segregated from their peers to ensure their human rights are being safeguarded.

“The national workforce challenges in mental health services must be resolved if people who are detained are to be truly empowered and involved in decisions about their care and treatment in therapeutic environments that are least restrictive. We welcome commitments made in the NHS Long Term Plan to address these issues.

“The upcoming government White Paper detailing future reform of

the MHA is a real opportunity for a more human rights-based approach. We will continue to work with our partners to ensure it supports people to have a real say in their care, that they are treated equitably and that their rights are protected.”

As part of its work to monitor the Act, CQC carried out 1,190 visits to mental health wards in 2018/19 and met with 4,436 detained patients to discuss how the Mental Health Act and its Code of Practice were being applied to them. Assessors requested 4,477 actions from providers to change the way care was being delivered to patients.

CQC’s Second Opinion Appointed Doctor service carried out 14,354 visits to review patient treatment plans. A change of treatment plan or no authorisation was given in 31% of visits to consider medication for detained patients, 22% of visits to detained patients to consider electroconvulsive therapy and 18% of visits to consider medication treatment for patients on community treatment orders. q

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Complex PTSD in asylum seekers

By DR MUFFAZAL RAWALA, consultant adult psychiatrist and member of the Expert in Mind expert witness panel

[PSYCHIATRISTS, the general public and the courts are aware about

the widely used terminology of post-traumatic stress disorder (PTSD).

The psychological consequences of exposure to trauma were extensively researched in Vietnam War veterans, which led to the development of diagnostic criteria for PTSD. In the 90s, research in the experience of domestic violence in women and children suggested that a meaningful clinical distinction may be made between single traumatic events and repeated, prolonged, interpersonal traumatic events occurring in a context of an authoritarian control. This clinical definition of complex trauma as ‘exposure to repeated or prolonged instances or multiple forms of interpersonal trauma, often occurring under circumstances where escape is not possible due to physical, psychological, maturational, family/ environmental, or social constraints’ has since gone virtually unchanged.

PTSD may present with a range of symptoms – including reexperiencing the trauma, avoidance, hyper-arousal, depression, emotional numbing, drug or alcohol misuse and anger as well as unexplained physical symptoms.

The symptoms of PTSD are extreme and encompass more than just remembering the event or dreams, but a combination of disabling recall, dreams and memories.

A large percentage of trafficked women and men present with anxiety, depression or PTSD. Those suffering PTSD may not present for treatment for months or years after the onset of symptoms despite the considerable distress experienced.

Complex PTSD (C-PTSD) is a subtype where adults or children who have experienced repeated traumatic events like neglect, abuse or trauma over a longer time period may develop signs and symptoms of PTSD. Complex PTSD is thought to be much more severe if the abuse and trauma happened early in life and was caused by a parent or carer, or the person experienced repeated incidents over a number of years and felt entrapped with complete control of the abuser over the victim – for example in the case of asylum seekers from totalitarian regimes or victims of human trafficking.

Children with C-PTSD could show behavioural problems affecting their personality development, develop negative coping mechanisms and, as adults, may become socially isolated and unable to form trusting relationships.

It is a widely held view that traumatic incidents are an extraordinary life experience capable of causing a wide range of physical and psychological suffering. Most clinicians and researchers agree that the extreme nature of the traumatic event is powerful enough on its own to produce mental and emotional consequences, regardless of

the individual’s pre-morbid psychological status. The psychological consequences of repeated trauma, however, occur in the context of personal attribution of meaning, personality development and social, political and cultural factors.

It is important to recognise that not everyone who has been repeatedly abused develops a diagnosable mental illness. However, many victims experience profound emotional reactions and psychological symptoms.

The emotional restriction and inability to consistently recall details of the abuse does not lead to any dispute in the authenticity of being a victim of abuse, nor does it question the diagnosis of C-PTSD. The emotional withdrawal, defensive indifference to traumatic memories and inability to consistently recall all details during asylum interview or statements, suggest a defence mechanism to safeguard from reliving and reexperiencing the horrific traumatic abuse – features commonly seen in victims of abuse and complex PTSD rather than feigning of symptoms.

In refugee samples, PTSD has been shown to be common amongst victims of human trafficking, domestic violence and torture, though C-PTSD has received little attention in this area. Two small studies in non-refugee samples investigated German victims of torture and domestic violence and found high C-PTSD prevalence, whilst none have investigated human trafficking.

The effect of major human rights violations on the presence of C-PTSD in asylum-seeking populations and victims of human trafficking, torture and domestic violence has not been consistently researched, although it is widely seen in the clinical practice of psychiatrists with experience of working with asylum seekers.

Many asylum seekers and refugees have fled their country of origin to escape the horrors of war, persecution, organised violence or torture.

Psychiatrists with experience of working with asylum seekers routinely see that individuals would either have difficulty in elaborating their statements, might have gaps in their history in their witness statements or make conflicting statements during their asylum interviews or hearings.

This makes it crucial that such individuals are referred to specialist psychiatry services with knowledge and experience of working with asylum seekers and an ability to interview them in a supportive environment to help overcome the emotional constriction and guarded behaviour. q • If you need a psychiatrist or psychologist to provide a high-quality report for your personal injury matter, contact the team at Expert in Mind who can recommend experienced experts in the field of mental health. Call 01424 44130 or email enquiries@expertinmind.co.uk www.yourexpertwitness.co.uk

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Guidance offered to psychologists working with refugees and asylum seekers [WHEN ASYLUM SEEKERS arrive in the UK they may believe that

it signals an end to their difficulties – but the reality can be different.

Professor Bill Yule from the Institute of Psychiatry, Psychology and Neuroscience at King’s College London, explains: “Asylum seekers have shown great fortitude in fleeing to this country. They bring many skills and experiences with them, but they may not always be familiar with the way things are done in their new country.

“Many individuals and organisations have offered to help them settle, but while many local communities show support, some others may show a lack of interest or worse. Asylum seekers may experience a lot of stresses such as homelessness, social exclusion, stereotyping and overt discrimination. The psychological impact of this realisation can be significant.”

That is one of the points emphasised in new guidelines for psychologists working with refugees and asylum seekers produced by the British Psychological Society.

Produced by the society’s Presidential Taskforce on Refugees and

Cladding: flat-dwellers need emotional support

[

PSYCHOLOGISTS HAVE expressed concern for the emotional wellbeing of people living in buildings with dangerous cladding. Protests outside parliament recently placed further pressure on the government to fund replacement cladding for the buildings still affected.

Many people will be suffering from post-traumatic stress disorder and disturbed sleep living under such frightening conditions.

Chartered psychologist Harry Davies from the BPS Special Group for Psychology and Social Care says: “Those residents will need psychological support led by trained psychologists, as well as ongoing work from within peer support groups. Many people will require individual support.

“Assurances are needed that future accommodation is totally safe, and that emergency escape routes and safety advice is made accessible to all people.”

The special group’s committee has highlighted the need to support the psychological welfare of people who may not have been in the Grenfell flats, but are still living in buildings with dangerous cladding.

Mr Davies, a clinical psychologist, says surviving residents may be suffering from feelings of powerlessness and fear and that they are not in control of their destiny. Survivors of Grenfell and people living in buildings surrounded by unsafe cladding will need a lot of reassurance that their lives are in safe hands. q

Asylum Seekers, of which Professor Yule was chair, the guidelines say psychologists have an important role in supporting refugees and asylum seekers and supporting the institutions and communities of which they form part.

The guidelines offer advice on supporting different client groups, such as adults, families and children, young people and unaccompanied minors. There is also guidance on working in the wider community and in settings such as the workplace and nurseries, schools and colleges.

The practicalities of working with interpreters are also discussed.

Other points for psychologists emphasised in the guidelines include: • Asylum seekers may assume people are familiar with the politics • and the human rights record of their country of origin. That may • mean that they do not immediately disclose their experiences of • human rights abuses, including torture, and their psychologist may • need to ask about it.

• Someone who has to seek asylum in another country is likely to • encounter multiple losses – loss of home, culture, family, profession, • language and friends, as well as their plans for the future. Getting to • the country may have involved trauma.

• Families are often split up and the journey is frequently fraught with • risk and numerous dangers, including arrest, theft, kidnap and • sexual violence.

Professor Jamie Hacker Hughes, a former BPS president who set up the taskforce, explained: “The number of refugees and asylum seekers in the United Kingdom, across Europe and across the world has increased dramatically since 2015. This developing worldwide crisis has resulted in headlines about thousands of people experiencing traumatic events, crisis and disaster with alarming frequency.

“As a discipline and a profession, psychology has a wealth of knowledge, experience and talent to apply in this area to help improve the lives of those who have fled their countries and are seeking safety. Psychological evidence and practice can help to equip individuals, organisations and communities with the knowledge, skills and understanding that they need in order to help them navigate challenging experiences in a complex world.”

The BPS Presidential Taskforce on Refugees and Asylum Seekers is an expert group that includes academic and practitioner clinical, community, counselling, educational and occupational psychologists.

Professor Hacker Hughes concluded: “I formed the BPS Presidential Taskforce on Refugees and Asylum Seekers in order to pool the expertise of society psychologists to provide the best possible advice to psychologists and others working in the field.

I wanted this special group of people to receive the very best psychological services. I am delighted that this report is now publicly available.” q

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Eye experts issue joint statement on improving patient care

[THE Association of Optometrists (AOP),

The College of Optometrists and The Royal College of Ophthalmologists (RCOphth) have joined forces to issue a statement outlining steps to tackle increasing pressure on hospital eye departments in England.

The organisations have called on leaders of NHS England to introduce new models of eyecare, with adequate funding, in a bid to protect patients from failings that pose a risk to sight.

The report by the Healthcare Safety Investigation Branch on Lack of Timely Monitoring of Patients with Glaucoma, published in January, centres on the serious risks to patients’ sight caused by delays in glaucoma appointments. That, and the Getting It Right First Time ophthalmology report both highlight the fact that urgent changes are needed in eye healthcare.

Under existing services as many as 22 patients a month across the UK suffer severe or permanent sight loss because their followup appointments and treatment in hospital do not take place quickly enough.

Clinical director for the AOP, Dr Peter Hampson, said: “Under the current system, things are simply not working. We’re regularly hearing stories of patients that are suffering as they live with unnecessary sight loss.

National recommendations were made on the referrals process for conditions like glaucoma over a decade ago, and yet people continue to experience the same systemic failings.

“We believe it’s time to see a change.

Making full use of the skills of other professionals such as optometrists could release time for ophthalmologists to manage cases where the patient has more complex needs.”

The statement points out that, even in the absence of enhanced services and funding, commissioners can still work to improve integration of services, and care providers can collaborate to improve the way existing resources are used. For example, ensuring that only patients whose conditions need secondary care input are seen in hospital will improve

capacity for patients with serious and sightthreatening conditions. That is likely to have a positive impact on patient waiting times and reduce unnecessary healthcare expenditure.

Melanie Hingorani, chair of professional standards at the Royal College of Ophthalmologists and the UK Ophthalmology Alliance, said: “There is an enormous amount optometrists and ophthalmologists can do to reduce care delays for patients with eye conditions if we work together. However, we need NHS England and NHS Improvement to enable greater collaboration by urgently addressing the many barriers in the current system limiting this.”

In the statement the organisations have set out immediate steps to improve patient eyecare referrals in hospitals in England. It calls on the Integrated Care Systems and their constituent CCGs to commission specific services from primary care optical practices, including: • Minor eye conditions • Integrated cataract care (pre and post-op) • Glaucoma referral filtering and monitoring Commissioners and national NHS bodies should also support the development of IT links between hospitals and community optometry, so that structured referrals can be made quickly and securely, and feedback on and support for referral decision-making can be more easily provided.

The statement also includes guidance for commissioners, hospital eye departments, individual ophthalmologists and optometrists to better integrate services and pool existing resources.

Ophthalmologists and optometrists

Individual ophthalmologists and optometrists can contribute to improving referrals through communication and collaboration. They should: • Develop and work to joint local care guidelines and referral criteria within the context of national pathway and guidance recommendations, including The College of Optometrists’ guidance and advice services • Build relationships between local primary

and secondary care, including optometrist visits to the hospital eye clinic where possible • Implement the good practice identified in national studies, such as combining active local education and good referral practice Ophthalmologists should provide clinical feedback to all referring practitioners and be actively involved in the education and development of local optometrists as primary eye care providers.

Optometrists should send clear, concise and legible structured referrals, which contain sufficient information to enable safe triage – including a timescale within which it is recommended the patient is seen.

They should, however, take care not to give patients unrealistic expectations of how quickly they will be seen.

Hospital eye services

Although hospital eye services are operating under great pressure, executives, managers and clinical leads can work with primary care optometrists to facilitate appropriate referrals. They can also promote the working together of ophthalmologists and optometrists to establish referral guidelines and provide advice to primary care optometrists on their preferred format of structured referral.

They should develop pathways to support referral decision making, such as telemedicine, support phone lines, advice and guidance, and ensure feedback on referrals.

The College of Optometrists’ director of policy and strategy, Dr Sarah Cant, said: “This joint statement is an acknowledgement of the root and branch reform that needs to happen across England to alleviate the pressure that hospital eye health services and patients are experiencing.

“We know that there are some areas where optometrists’ skills are utilised in enhanced services schemes, resulting in patients being seen quickly and their treatments managed locally. These need to be available across England if we are to tackle the systemic problems now being faced.” q www.yourexpertwitness.co.uk

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Optometrists call for halt to degree apprenticeship [THE ASSOCIATION OF OPTOMETRISTS (AOP) has called for a

halt to the current proposal for optometry degree apprenticeships until the profession’s serious concerns are addressed.

Skills for Health – the sector skills council for the healthcare sector – recently released a ‘Q&A’ document saying the trailblazer group would continue to work on the proposal. The AOP contacted the trailblazer group, Skills for Health itself and the Institute for Apprenticeships in late January, arguing that development should stop until strong concerns over patient safety and confidence in the profession, raised by many in the sector, are fully addressed.

The AOP pointed out that a proposal for a degree apprenticeship in pharmacy has been halted twice to allow for proper stakeholder engagement, and that optometry deserved the same consideration.

The association states it has received no response from the trailblazer group or the other organisations involved.

The AOP’s clinical director, Dr Peter Hampson, commented: “We continue to be deeply concerned over the optometry apprenticeship proposal. We are even more concerned that those involved in its development seem to be ploughing on without properly addressing the issues that are being raised by many optometrists. There are a range of reasons to oppose the current proposal but above all the risk it poses to patient safety and confidence remains key. We’re very disappointed that these concerns have been met with silence.”

The AOP was the first major optical body to oppose the degree apprenticeship – drawing on member feedback to build a case against

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“

There are a range of reasons to oppose the current proposal but above all the risk it poses to patient safety and confidence remains key Dr Peter Hampson, AOP Clinical Director

”

the proposal as part of its consultation response last December. Since then the AOP has been working with other stakeholders, including current education providers, to explore the key issues around student supervision and quality assurance. It is clear that these are already challenges under the current education system, and that the difficulties would be amplified if a degree apprenticeship was introduced.

The AOP is asking members who have had problems with supervision in an optical practice under the current education system – whether as an undergraduate or pre-reg student, or as a registrant who’s been asked to supervise a student – to share their experiences. q

Mask shortage: dentists applaud govt action [THE BRITISH DENTAL ASSOCIATION has applauded swift

action from government and the dental industry to unlock stocks of face masks to ease the mounting supply problems facing UK dental services.

Dentist leaders anticipated some larger practices having to scale down activity, or prioritise urgent over routine care. Shortages emerged in the wake of the coronavirus (COVID-19) outbreak, following panic buying and moves by China – the world’s leading supplier of hygienic masks – to prioritise unprecedented domestic demand over the export market.

Tooth whitening prosecutions continue to mount [

THE PROCESSION OF court actions brought by the General Dental Council (GDC) against those offering tooth whitening illegally continued through the end of last year and into this.

The latest – prior to going to press – was on 28 February at St Albans Magistrates Court, where Stuart Waterton of Essex Smiles, Hertford, was found guilty of illegally offering tooth whitening and was ordered to pay over £5,500 in fines and legal costs.

Following the hearing, the GDC’s head of in-house appeals and criminal enforcement, Jenny Stewart, said: “Illegal tooth whitening represents a real risk, as those who carry it out are neither qualified to assess a patient’s suitability for the treatment, nor are they able to intervene should an emergency arise. When we receive a report of illegal practice we seek to educate those involved about the dangers and the law in relation to tooth whitening. Where our efforts are ignored, as in the case of Mr Waterton, we will, where appropriate, prosecute in the criminal courts.”

Under the Dentists Act of 1984 it is a criminal offence for a person who is not a registered dentist or a registered dental care professional to practise dentistry.

The St Albans case followed prosecutions in Basildon, Edinburgh and Stratford, East London so far this year and a stream of cases last year. q

Following BDA concerns in February the Department of Health and Social Care indicated that significant central stockpiles existed, including reserves built up for the UK’s departure from the European Union. The stocks formed part of the supply chain for hospitals, but were out of reach for primary care providers like dentists and GPs, who access products directly from manufacturers and wholesalers.

It is understood that, following an agreement forged at the end of February, supplies from government stockpiles have been released to ease immediate pressures.

The face mask shortage is global, with dentists in Japan, Australia, New Zealand, Canada and parts of the US reporting major disruptions in supply.

BDA chair Mick Armstrong commented: “The clock was ticking on this face mask shortage, and dentists and patients will applaud decisive action from the industry and government. We were clear any solution hinged on getting needed supplies into the hands of high street practices.

“Our members are facing difficult choices, and we will continue doing everything in our power to prevent disruption to patient care.” q

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“I’ve given up” – the true cost of lying smokers in healthcare litigation

By TOBY TALBOT BDS MSD (Washington) FDS RCS TOBY TALBOT is a specialist in restorative dentistry, prosthodontics, endodontics and periodontics. He has over 20 years experience as an expert witness, with a specific interest in dental negligence litigation claims. In this issue Toby considers the consequences of a less than reliable clientele…

[ALARM BELLS are ringing across the UK, enflamed by a disturbing

increase in healthcare litigation. It’s got so bad, that a UK medical or dental practitioner today is now four times more likely to have to defend a claim than a practitioner in New York. If there was an award for ‘Litigation Country of Culture’ we would win it.

The actual sum paid in compensation by the NHS for medical cock-ups in 2015 was over £1.3billion. And who pays for this? We do: the tax payers.

The question I’d like to ask is this: how many of these claims are legitimate? I suggest that an unhealthy proportion of these claims are inappropriate, and are taking a shameful toll on our finances and the reputation of our healthcare workforce.

As a restorative dental specialist of 30 years, I’ve been called on as an expert witness in countless medico-legal cases and have been shocked by some claimants and their lawyers, who callously proceed down the costly route of litigation, knowing full well they have no right to do so.

Many even win.

On the face of it

Take this case, for example. If you were to learn that a patient who twice suffered failed surgery to treat severe facial asymmetry was on the cusp of claiming a substantial payout, you would probably feel that some small justice was finally being done for the unfortunate woman. Especially when you learnt that the second, ‘corrective’ surgery actually worsened her original state.

But if you look below the surface as I did, you will see that things are not quite how they first appear. The case went something like this…

Pre-surgery one

The patient went for treatment at a major dental teaching hospital. As standard procedure, the maxillofacial team carried out a full pre-operative assessment, involving photography, three-dimensional scans, orthodontic opinions and a thorough history. The patient was a smoker, so their assessment report raised the importance of her stopping smoking to avoid adverse influence on post-surgical healing. At this point, the patient was reported to have quit smoking.

Surgery one

Surgery went ahead, however the results were not as expected: the patient experienced complete breakdown of bone healing and relapse.

This led to even more severe facial asymmetry than before.

Pre-surgery two

You won’t be surprised to learn that at this point the patient said she ‘lost all confidence’ in the surgical team and the hospital. So she was referred to another head and neck surgical team in a district general hospital 30 miles away. They assured her they would start the whole process from scratch, and so proceeded to carry out the usual pre-operative work. In the meantime, the patient started civil proceedings against the first teaching hospital - and the hospital admitted liability.

Surgery two

And so the patient underwent surgery for the second time. Again her facial bone union broke down and she was left with the same problem. The legal claim would be enormous.

It’s at this point in the story that I was called in. I was specifically to

provide an expert opinion on three things: the patient’s current condition, her prognosis, and the future treatment required to make good the second, failed surgical intervention with restorative dentistry.

Act like the flower...

During my consultation with the patient, we get to the question of smoking (note that both hospitals required total cessation of smoking before and following surgery before they could proceed). She confirms that she stopped smoking at the times indicated on both hospitals’ records, including the teaching hospital that ended up admitting liability.

...but be the serpent under’t

Unfortunately for this particular patient, I’m a proponent of the ancient Greek physicians’ philosophy, which roughly translates as: “Don’t tell me about the disease in the man, but about the man with the disease”. So, after our consultation, I asked her GP for her medical records. They would help me gain a better understanding of the patient’s past health.

I’m a firm believer that the journey a patient makes to get to the ‘here and now’ has an inevitable influence on the probable course and outcome of surgery, especially on the chances of recovery. When it comes to making a meaningful prognosis, William Faulkner’s words ring true: “The past is never dead. It’s not even past.”

The GP’s records went more than 30 years into the past. But it was what I discovered in her recent past that would blow her case right out of the water. You can imagine how I felt to read about her counselling and treatment for smoking cessation right up to one month prior to her seeing me – three years after her first surgery and 18 months after the second attempt.

Her medical records also documented that she ‘reduced her cigarette consumption to only 10 cigarettes a day’. This was dated one month previous to our meeting and despite the patient delivering an emphatic ‘no’ on three separate occasions when I asked her if she was a smoker. A lie lost in the stinking waft of tobacco that waved in her wake.

Linchpin versus lynch mob

Naturally, in view of the well-established negative influence of cigarette smoking on soft and hard tissue healing, I included these findings in my report. The smoking issue was to be the lynchpin in the case.

As you will have gathered, this did not go down well with the lynch mob – I mean lawyers. They immediately instructed me to drop all mention of her smoking, as I was ‘not an expert on smoking’, so should restrict myself wholly to the subject of restorative dentistry.

At the end of the day, I’m the expert, not the lawyer. I held my ground, confident in the established protocol of both hospitals requiring the total cessation of cigarette smoking before and following surgery. The case was dropped.

So you can see why I question the billions of pounds we pay out each year to claimants who could well be putting up a smoke screen, relying on expert witnesses and hand-rubbing, lip-licking lawyers who are prepared to do the bare minimum at best or omit critical evidence at worst. q • Toby Talbot is clinical director at the Talbot Clinic. Over the last twenty years, Toby has established a professional fast-track service for the legal community, helping courts, counsel and judges make accurate and wellinformed decisions. www.yourexpertwitness.co.uk

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Knives pose a danger in the workplace as well as on the street [MUCH PRESS HAS been devoted in recent years to the wounds

suffered to the hands of knife crime victims: the latest to hit the headlines was in November in Nottingham. Less newsworthy, but more frequent, are the many injuries suffered by those who work with knives on a daily basis.

According to the Health and Safety Executive (HSE): “Hand knife injuries still account for a significant number of injuries, according to trade association statistics for the plastics industry. They occur in all parts of the industry, including film production, moulding, extrusion and fabrication.”

In an information sheet aimed at those managing risk associated with hand knife use, the HSE says: “Hand knife injuries often happen when the knife slips during cutting or trimming. In most cases the blade comes into contact with the worker’s other hand, causing a laceration to the hand and/or fingers. Injuries can also occur to other parts of the body, including the knife hand itself.”

The best way to prevent injuries from hand knives is, of course, to avoid using knives in the first place. That may seem self-evident, but it often does not occur to seek alternatives to what may seem the ‘normal’ way of working.

Failing that, the guidance offers a series

of steps to ensure the risks of injury are minimised. They range from specifying the correct knife for the task from a series of ‘groups’, through ensuring spare blades are available and providing safe storage, to provision of the correct PPE and training. Finally, checking and monitoring should be carried out to ensure the rules are being followed.

Perhaps the industry most prone to knife injuries is, of course, the food and catering industry. HSE offers a precautionary case study.

“While trying to open a 25 kilo bag of potatoes, the commis chef sliced the corner of the bag using a 12-inch fish filleting knife. With the knife still in his right hand pointing upwards, he then attempted to move the bag. The cut section of bag gave way causing the knife to be thrust upwards into his face, causing a severe laceration.”

So, while knife injuries sustained during a criminal attack may attract headlines, the workplace is a far more dangerous place. q

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Physios stress the importance of rehab [

A HARD-HITTING new report by the Chartered Society of Physiotherapists (CSP), Royal College of Occupational Therapists, Sue Ryder, and a collective of 21 charities, trade unions and professional bodies has warned that failing to provide community rehabilitation outside of hospital can have devastating consequences for people’s lives, and bring greater costs for the NHS and social care systems.

The importance of rehabilitation in speeding recovery and keeping down the cost of care has long been recognised by the legal profession – particularly personal injury lawyers – and providing a high level of rehabilitation can have similar benefits to the NHS. To coincide with the release of the report, which was presented to MPs at an event in Parliament, new research by the CSP has found that only 29% of patients felt they received completely sufficient rehabilitation after discharge from hospital, and showed stark differences between the experiences of those who did receive it and those who missed out. Only 10% of those with insufficient aftercare returned to their normal pre-condition life, compared with 42% of those who received the right treatment.

CSP chief executive Karen Middleton said: “Everyone should get the rehab they need to live life to the full and be as independent as possible. It is essential that in the next decade we witness a radical transformation in provision to ensure no-one misses out. It’s not acceptable that we are missing opportunities to improve lives.” q

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The physiotherapist: often the best source of expert opinion in injury cases Chartered physiotherapist SARA DICKINSON explains the unique insight ‘physios’ have

[THE CIVIL JUSTICE COUNCIL’S guidance on the instruction of

experts requires that an ‘appropriate’ expert be instructed. In cases involving claims for personal injury the regular procedure has been to consult a GP or an orthopaedic consultant for an assessment of the severity of the injury, and to prepare a medico-legal report for the court.

However, in many personal injury claims – particularly those involving damage to the soft tissues – a physiotherapist is the most appropriate health professional to instruct as an expert witness.

While GPs see a very broad range of presenting problems, most experienced physiotherapists have a narrow or specialist field of clinical practice. There are around 30 professional networks recognised by the Chartered Society of Physiotherapy and many physiotherapists undertake expert witness work related to their specialty. Those specialties include neurological impairment, amputees, respiratory care, elderly care and paediatrics.

The largest network is the Musculoskeletal Association of Chartered Physiotherapists (MACP), which is concerned with the assessment and treatment of orthopaedic and musculoskeletal injuries. Those physiotherapists are experts in assessing and treating injuries of the joints and soft tissues. Injuries may be insidious in their onset, or related to accidents, sporting injuries or the workplace. Many cases will involve treatment following surgery, either elective or emergency.

Physiotherapists are experts at assessing, treating and preventing musculoskeletal problems – i.e. those related to human movement. They have an in-depth knowledge of how injuries recur and the likelihood of it happening. They adopt a holistic approach and understand how injuries impact on a person’s job, family life and sporting interests. They can advise on a phased return to work and sport, to minimise the chance of recurrence.

Many modalities may be considered for the treatment of such injuries, for example exercise programmes, electrotherapy, injection therapy or other methods such as splinting, bracing and walking aids which can optimise recovery.

Often the physiotherapist will be the first port of call for somebody needing help with an injury and will be able to signpost the patient for medical opinion and/or investigations as required. Management of such injuries requires a detailed assessment of the mechanism of injury and consideration of the history of the injury, along with results of any investigations such as blood tests, X-rays and CT/MRI scans.

The physiotherapist is also the clinician most likely to see a patient regularly, from the time of injury through to recovery, which makes them ideally placed to assess the claimant and produce a condition and prognosis report.

The Civil Procedure Rules state that physiotherapists registered with the Health Care and Professions Council may be instructed to provide a report in a soft tissue injury claim. As mentioned previously, a physiotherapist is often the health professional best placed to instruct as an expert witness in many personal injury and clinical negligence claims.

Many liability reports involving physiotherapists relate to treatment in an outpatient setting, for example alleged failures to note or act upon ‘Red Flag’ signs and symptoms. That is often in the case of spinal patients and those with suspected cauda equina syndrome. Physiotherapy management of potential cauda equina cases has changed in recent years as a direct response to the increasing number of claims.

Other allegations may relate to a missed diagnosis of a fracture, for example commonly the scaphoid bone, and many claims relate to soft tissue injuries, such as ruptured tendons or ligaments. Allegations about missed medical conditions, such as deep vein thrombosis (DVT) and

pulmonary embolus (PE), are also increasingly seen.

A common allegation is that the physiotherapy treatment was too intensive, resulting in injury or re-injury. Alternatively, there may be allegations that treatment was insufficient and fell below a reasonable standard. In cases where the physiotherapist may be the first clinician to see a patient following injury, then there may be allegations that the patient should have been referred for medical review.

In conclusion, personal injury and clinical negligence claims are increasingly being brought against physiotherapists both within the NHS and in private practice. This in turn has led to more physiotherapists becoming expert witnesses in their field. q • Sara Dickinson (Grad Dip Phys) MCSP is a senior physiotherapist with expertise in trauma, orthopaedics, cauda equina, chronic pain, elderly care and general surgery. She is an associate trainer for physiotherapy experts at Somek and Associates.

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New model for knee revision procedures announced [ CHANGES TO THE WAY complex joint replacement is to

be carried out in England have been revealed. In a joint letter to their members, the British Orthopaedic Association (BOA), the British Association for Surgery of the Knee (BASK) and the British Hip Society (BHS) have outlined the changes, which are being implemented in response to the Getting It Right First Time report of 2015.

That report highlighted concerns about revision surgery being undertaken at a large number of units. In particular, some of those units carried out very few procedures and consequently had limited expertise.

The Getting It Right First Time report concluded: “Consideration should be given to revision surgery being approached on a regional basis and delivered by networks of appropriately experienced surgeons at a smaller number of locations.”

Over recent months, a framework has been developed for a ‘hub and spoke’ network model of care, which will be piloted first for knee revision cases. They will then ‘potentially apply to revision hip replacement next and then other subspecialties in future.’

Those centres performing low volumes of procedures will cease to undertake knee revision cases, with a pathway to refer patients to one or more other centres in their region. The threshold is still to be decided.

The medium and high-volume revision centres will continue to undertake ‘straightforward first-time knee revision cases’. Complex revisions, second (and subsequent) revisions and those for infection will be referred to a regional specialist ‘hub’ centre.

According to the letter: “The hubs will receive patients from other hospitals in the region and will have in place the expertise and facilities to deliver complex surgery as well as planned session time for complex revision regional multi-disciplinary teams.”

The letter continues: “The model has been developed by BASK and is supported by the BOA. It is expected that a further expansion into hip revision will be a next step and could follow a similar model in due course, with leadership from BHS. Throughout this process, we recognise that full engagement with all relevant stakeholders and all of our respective memberships is important.

We will continue to update and involve you as these projects move forward.” q

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Thousands waiting months for joint replacement, figures show [FIGURES PUBLISHED IN FEBRUARY by the charity Versus Arthritis show that tens of thousands

of people in England waited over 18 weeks for hip or knee replacements. The figures are based on Freedom of Information requests regarding procedures in 2018-2019 and show that more than 30,000 people waited over the 18-week ‘guaranteed’ time – nearly half the total of operations.

Furthermore, a quarter of those waited more than 26 weeks and 2,400 people waited over a year for treatment. Only 57 of the 135 trusts that perform knee and hip replacements across England responded to the request for information, so the figure could be much higher.

The CEO of Versus Arthritis, Dr Liam O’Toole, commented: “Joint replacement surgeries are life-changing – but far too many people with arthritis aren’t getting them when they need them. In the last year alone, almost 30,000 people in England waited more than 18 weeks for a new hip or knee. For people with arthritis that wait is agonising. It stops them working, causes their physical and mental health to get worse and affects their relationships.

“Put simply, this snapshot paints a devastating picture, and in reality it’s likely to be just the tip of the iceberg. We are deeply concerned that even more people with arthritis will be stuck on waiting lists. That would be unacceptable.”

In a statement issued in response to the report, the British Orthopaedic Association (BOA) pointed out it has raised concerns for some time over waiting times and that the figures from Versus Arthritis ‘provide further insight into the situation for hip and knee replacement in England specifically’.

Mr Don McBride, president of the BOA, commented: “We are concerned that orthopaedic surgery is too often considered to be ‘optional’ surgery and our patients are the first to have their operations cancelled or delayed when there is pressure elsewhere in the health system. Patients on waiting lists for hip and knee replacement surgery are patients who will be experiencing severe pain and mobility problems, which can impact more widely on their physical and mental health the longer they wait. The on-going deterioration in waiting times is unacceptable. More must be done urgently to ensure that patients receive timely access to the procedures they need.”

Versus Arthritis has launched a petition calling on the government to act on growing waiting lists, as part of its Right on Time campaign. The BOA has urged its members, colleagues and patient supporters to sign up. q

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