Your Expert Witness Issue No. 58

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contents IN THIS ISSUE 7

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Opening Statement

NEWS 8 Expert castigated by judge for numerous failings 8 Bond Solon conference offers a choice of formats 9 Dispute resolution: MoJ issues call for evidence VIEWPOINTS 11 Post-nominals – do they matter?

12 Thought crimes: how more people are being caught in the net FORENSICS 13 Explosives laboratory marks its 150th anniversary BUILDING & PROPERTY 14 Court leans towards claimants in fire-safety cases

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FIRE INVESTIGATION 15 Has your client's fire claim been denied?

ANIMAL WELFARE 16 Pet abduction set to become criminal offence 16 Agency protects animals from medical misuse TRANSLATION & INTERPRETING 17 Company’s vigilance praised as another fake interpreter is unmasked 17 Linguists’ institute lobbies on behalf of members in Afghanistan

A to Z WEBSITE GUIDE 31 Our A to Z guide to the websites of some

of the country’s leading expert witnesses.

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EXPERT CLASSIFIED 50 Expert Witness classified listings 53 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 19 Medical Notes

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NEWS Burnout among junior doctors soars during pandemic 21 21 Blood test cancellations: inform patients and note results, says defence body 23 BMA to fund surgeon’s case against GMC 23 New body will tackle health inequalities 24 Regulator publishes data on COVID deaths in care homes PAIN MEDICINE Pain is a complex subject for any expert to assess 25 26 Report reveals the true cost and suffering of living with chronic pain 26 All aspects of pain and its effects are subjects of study 27 How strong is the link between long COVID and chronic fatigue syndrome?

PSYCHIATRIC & PSYCHOLOGICAL ISSUES Young people with eating disorders suffer worse from pandemic 29 29 Psychiatrists respond to review of drug abuse treatments 30 New guidance issued on working with autistic people 30 Consultation closes on access to services

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ORTHOPAEDICS Study finds choice of implant most important factor in successful hip replacement 33 35 Press coverage of joint study brings response from surgeons PHYSIOTHERAPY Medicolegal work is the specialism of physios’ network 36 36 Horses help with rehabilitation 36 Physios’ role comes to the fore at the Games DENTISTRY & MAXILLOFACIAL SURGERY Patel should ditch dental age checks, say dentists 37 37 Court case adds to practice owners’ liability worries OPHTHALMOLOGY & OPTOMETRY Survey of low vision services highlights need for review 41 41 New guidance sets out AMD care standards

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CARDIOLOGY Waiting lists for heart treatment continue to rise – and could double in two years 43 OBSTETRICS & GYNAECOLOGY RCOG calls for ban on virginity testing and hymenoplasty 44 UROLOGY Why you may need an expert witness in urology 45 PLASTIC, RECONSTRUCTIVE & HAND SURGERY New course equips aesthetic surgeons to understand patients’ state of mind 47 47 Plastic surgeons’ association celebrates 75 years in style VASCULAR MEDICINE 48 Leg ulcers: confusion over diagnosis and treatment leads to problems www.yourexpertwitness.co.uk

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Opening Statement [

IN THE LAST ISSUE of Your Expert Witness we reported on the annual conference of the Expert Witness Institute.

That event happened entirely remotely, occurring as it did while we were still in the grip of the COVID lockdown. In November it’s the turn of the Bond Solon Annual Expert Witness Conference. This is to be a ‘hybrid’ event – partly in person at Church House, Westminster and partly online via a weblink. COVID permitting, that is: as this column is being written reports are emerging of plans for a further lockdown in October following a sharp spike in cases.

• One of the many puzzling consequences of the pandemic was a rise in the number of pets being acquired – mainly dogs. The loneliness of isolation presumably led to a desire for companionship. That rise led to a concomitant spike in the number of thefts of, again, mainly dogs, with the price of some breeds nearly doubling.

Now, pet abduction is to become a separate criminal offence, following a report by the government’s Pet Theft Taskforce. While the move has been broadly welcomed by the animal welfare lobby, at least one expert is still concerned that the welfare of the people affected is prioritised over that of the animal.

• Disputes over ownership and custody give rise to countless civil proceedings and the overwhelming majority are able to be resolved out of court. The use of mediation and conciliation is being promoted by this government, in a bid to take more everyday disputes out of the courts.

To further that aim, the MoJ has issued a call for evidence, looking for views on how new technology, as well as traditional dispute resolution processes, can be employed.

• Back in the courts, an important clarification has been issued in cases involving disputes over fire safety. A convoluted and somewhat bizarre case gave rise to the judgement in the Technology and Construction Court. An expert in that area of law explains the ramifications.

• Explaining the nuances in complex cases is one of the roles of the expert witness, of course, and the adversarial nature of court cases sometimes leads experts away from the virtuous path of remaining impartial and sticking to their specialism. There have been a number of cases recently of judges castigating expert witnesses for not keeping to the rules. In one recent case the judge described no fewer than eight failings on the part of one expert.

• Erring from the expected standards is problematic when the person in question is actually qualified for the job in hand: when that person is using faked qualifications to try to carry out court work it is an entirely different matter.

Such has been the case with court interpreters. Following the case of Mirwais Patang – which we reported earlier this year – procedures for spotting frauds have been tightened up, resulting in the unmasking of another would-be interpreter with forged ID. • The interpreters and translators working for the armed forces and contractors in Afghanistan are among those groups finding themselves most under threat from the rise of the Taliban. Organisations representing them have been rightly lobbying government to expedite their escape wherever possible. We can only add our voice to that clamour.

• Much has been said in political circles of the rise in the terrorist threat in this country caused by the Taliban takeover in Afghanistan. Helping to deal with such events is one of the roles of the Forensic Explosives Laboratory – part of the Defence Science and Technology Laboratory.

Now based at Porton Down, that organisation has been in existence in one form or another for 150 years this year. Let’s hope it can help keep us safe for another century and a half. q

Ian Wild

Ian Wild, Director of Business Development Your Expert Witness

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Expert castigated by judge for numerous failings [A JUDGMENT by The Honourable Mr Justice Fraser in the

case of Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd [2021] EWHC 1116 (TCC) – reported by the Expert Witness Institute – highlighted the numerous failings of a particular expert.

The judge highlighted no fewer than eight key failings of the expert’s performance. In a follow-up judgement related to costs The Honourable Justice Fraser stated: “There is a worrying trend generally which seems to be developing in terms of failures by experts generally in litigation complying with their duties. Practice Direction 35 makes the position very clear: 2.1 – Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.

2.2 – Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate.”

The chief executive officer of the Expert Witness Institute, Simon Berney-Edwards, said: “This judgment provides yet another stark reminder of the importance of people putting themselves forward as an expert witness understanding their role and the duties to the court. Judges have an important role to play in highlighting poor practice and feedback such as this can ruin your reputation.

“Although the judge did not believe on this occasion that the actions of the expert would justify an award of indemnity costs, it does highlight the implications for those experts who do not take their duties seriously.” q

Bond Solon conference offers a choice of formats [ THIS YEAR’S Bond Solon Annual Expert Witness

Conference will be a hybrid event, to be held on 5 November.

The conference is a must attend event for expert witnesses to keep up to date with the rapid changes happening in the law.

Sir Geoffrey Vos, the new Master of the Rolls, has vowed to ‘radically rethink’ civil justice and he is the keynote speaker. Other high-profile speakers will keep delegates abreast of current trends and changes.

Bond Solon will also be formally launching the brand new Bond Solon Expert Witness Hub, giving experts free information, including specially drafted terms and conditions for Sir Geoffrey Vos, experts and lawyers.

Master of the Rolls There is the option to attend in person at Church House, Westminster, or virtually via Bond Solon’s conference web platform. Both formats begin at 9.15am with registration and end at around 5pm.

Parallel sessions will take place in the afternoon where participants can take part in the session most relevant to their area of work. The sectors are commercial, criminal, family and medicolegal.

Following the conference there will be a complimentary drinks reception and awards ceremony for experts who achieved the CUBS and UABS Expert Witness Certificate in 2020/2021.

The cost is £285 plus VAT to attend in person or £265 plus VAT remotely. Firms with five attending pay for four.

For more details and to book places visit www.bondsolon.com. q

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Dispute resolution: MoJ issues call for evidence [

ON 3 AUGUST the Ministry of Justice issued a call for evidence on dispute resolution, seeking views on the best ways to settle family, business and other civil disputes away from the court room.

The government says it is determined to help more people resolve issues without the stress and cost of a court case. The exercise will examine whether new technologies, as well as services such as mediation and conciliation, could provide smarter and less adversarial routes for finding resolutions.

Issuing the call, Lord Chancellor Robert Buckland QC MP said: “We want the public, families and businesses to be able to resolve disputes easily and with as little stress as possible – avoiding often lengthy and costly court battles. That is why I am delighted to launch this important call for evidence which will help shape our plans to harness new technologies and ensure more people can get resolutions in ways that work for them.

“I look forward to hearing a range of views that will be invaluable in informing our next steps.”

The MoJ stressed that litigation will always remain as an option open to everyone, and some cases will inevitably require people to go to court. However, the government wants people to have a greater range of options to settle disagreements proactively and

constructively – via routes most appropriate for their particular case.

The move came as research was published showing that more than 70% of those using mediation services will resolve their issues outside of a courtroom. In 2019, only 3% of the two million civil proceedings issued went to trial, showing the vast majority of claims can be resolved without the need for a judgment.

The MoJ quoted a case where mediators were able to settle a dispute between two sisters who disagreed over what to do with a £1m flat left to them in their mother’s will.

Mutual distrust between the two meant that face-to-face mediation risked making the situation worse. One wanted to sell the property and the other wanted to refurbish and let it out. A qualified mediator was able to meet each sister separately and forge a path towards a suitable settlement, with one of the sisters paying half of the value of the flat to the other.

In another case a mediator settled the differences between a separated couple who could not agree on child arrangements.

The father had not seen his nine-yearold daughter for three months, despite previously having had regular contact. While they were insisting on taking the case to court, the mother and father were persuaded

to have a mediation session before going to a judge. That support helped the couple to reach an agreement – setting the conditions for the father to see his daughter again.

Beverley Sayers, director of the Family Mediation Council and accredited mediator, said of that case: “Mediation can help people who seem poles apart reach agreement. This case illustrates how helping parents focus on their child’s needs enabled them to reach an immediate agreement with positive outcomes for all parties involved.

“Going to court would have taken much longer, likely resulting in considerably more anguish for the child and parents, who would have had no control over the outcome.”

The call for evidence runs until 30 September. It follows the family mediation voucher scheme launched by the government in March, backed with £1m in funding, which has already benefitted hundreds of families with more than half the vouchers used. q

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Post-nominals – do they matter?

A moral tale about your choice of expert

By CHRIS MAKIN chartered accountant, accredited civil mediator and accredited expert determiner

[IN A RECENT issue of Your Expert Witness I wrote

about Andrew Ager, an ‘expert’ appointed by the CPS to give evidence at the trial of some men accused of the sale of voluntary carbon credits (me neither!).

His incompetence, lack of experience and malpractice were quite breathtaking, causing the criminal trial to collapse and the CPS having to revisit several previous trials at which his unsafe expert evidence had helped to achieve convictions.

Ager’s failings tell a story which is difficult to believe.

Just look at this list: 1. He had attempted to dissuade the defence expert, 1. Dr Marius Cristion Frunza, who holds a PhD from 1. the Sorbonne, from giving evidence.

2. He had no academic qualifications. When asked about A-levels, 1. he replied that he thought he had sat three subjects, but he 1. couldn’t remember whether he had passed any.

3. He said he kept abreast of the carbon credits market, but had not 1. read any of the books written by Dr Frunza although they were 1. widely available. He had though once watched a documentary on 1. carbon credits!

4. He admitted that several assertions he had made to Dr Frunza 1. during a meeting of experts were untrue.

5. He asserted – despite it being his clear duty under CPR – that it 1. was not part of his duty to bring facts helpful to the defence to the 1. attention of the court.

6. He had no record of any of the material supplied to him by the 1. police, or of any of his workings.

7. He did admit that he had been supplied with some sensitive 1. material by the police, but it had been damaged by a leak. But not 1. to worry; he asserted that matters were now in order, since he now 1. kept sensitive material in a locked box on his balcony.

More recently, we heard of the failings of Carl Stokes who gave evidence at the Grenfell enquiry. This is another story which is difficult to believe, but please read on.

Carl Stokes is a former firefighter who became a fire safety consultant on retirement, and bid for the work of assessing fire safety at Grenfell Tower for the Kensington and Chelsea Tenant Management Association (KCTMO). He carried out six fire safety inspections between 2009 and 2016; that is, from long before the fire on 14 June 2017 and installation of the disastrous cladding which Sir Martin Moore Bick, the enquiry chairman, found did not comply with building regulations.

Stokes’s evidence to the enquiry was that he got the job with KCTMO because he appended to his name six post-nominals to which he was not entitled or which did not exist. The report I have seen makes reference to some of them, from which one may deduce that his business card must have read something like this: Carl Stokes fire eng (FPA), IFE assessor/auditor (FSO), NEBOSH, FIA BS5839 system designer, competent engineer BS 5266 (plus one more, unknown) That’s ugly enough, but some of these were simply reference numbers for courses he had attended, and he was not an IFE (member of the Institution of Fire Engineers). When challenged on that, he replied that anyone could check that he did not have that qualification if they had looked at the list of members at IFA! This was clearly a person whose competence should have been questioned. And in further evidence it was revealed that he did not

carry out proper inspections; in fact he cut and pasted extracts from other reports into his Grenfell reports, with the result, for example, that he commented on the Grenfell balconies. Grenfell did not have balconies.

The moral is that someone at KCTMO should have checked this man’s qualifications when he was selected. And preaching the obvious, this should also be done by you as instructing solicitors when choosing your experts.

Your intended expert’s post-nominals should stand scrutiny. As an example, here are mine with their provenance: • FCA – Fellow, Institute of Chartered Accountants in England •& Wales • FCMI – Fellow, Chartered Management Institute • FAE – Fellow, The Academy of Experts (one of only about 60 • worldwide) • QDR – Qualified in Dispute Resolution. In fact, I have this twice: as • an accredited mediator at The Academy of Experts and as an • accredited expert determiner there, in the first batch of five ever to • be awarded this. I could put QDR QDR after my name, or perhaps • QDR2, but that would be pretentious!

• MCIArb – Member, Chartered Institute of Arbitrators (as an • accredited mediator) And even before checking my extensive experience as a forensic accountant, expert witness, civil & commercial mediator and expert determiner, you could gain assurance that I am who I say I am, by checking the members lists on all those professional bodies.

You, dear litigation lawyer, will have spent a great deal of time and effort on your cases. When you reach the point of instructing experts, don’t be fooled by a long string of invented qualifications. Relying on the likes of Andrew Ager or Carl Stokes as your expert may be unwise. q

About Chris Makin

[CHRIS MAKIN was one of the first 30 or so chartered accountants to become an Accredited Forensic Accountant and Expert Witness – see www.icaew.com/about-icaew/find-a-chartered-accountant/find-anaccredited-forensic-expert.

He is also an accredited civil and commercial mediator and an accredited expert determiner. Over the last 30 years he has given expert evidence at least 100 times and worked on a vast range of cases.

For CV, war stories and much more go to the website at www.chrismakin.co.uk – now with videos! q

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Thought crimes: how more people are being caught in the net In this first in a series on the criminal expert, Dr MARK BURGIN BM BCh (Oxon) MRCGP DCH CPE Dip Med Ethics explains how medical experts are evolving to keep up with the changes to the criminal justice system.

[THE OLD-FASHIONED psychiatric

reports, with their clinical diagnoses, were useful in the days when criminals were bad people who had done bad things. The system needed to know if the accused was bad, mad or dangerous, so that they could be put in the right place.

Even before the recent changes there were increasing numbers of drug users coming into prison who did not fit that model.

Disability analysis helps provide a fine-grain picture of the person to assist the court.

There are three basic changes: first, the net around a crime has been expanded to include many more people than previously; second, the types of behaviour considered to be criminal have also increased, so a larger proportion of the population are at risk of being found guilty; third, the improvements in crime detection with the use of information technology have led to an order of magnitude increase in those caught by the new ‘industrial’ methods.

Everyone is responsible

Expanding the net makes sense: the person who gives the order may be far from the person committing the crime. Joint enterprise is being used successfully to charge two or more people of the same crime and avoids the old problem of finding out who actually did the deed. That can go too far, for example when a person was at the scene of a crime for innocent reasons.

The public may be pleased when more criminals are put away, but be less happy if people who are innocent are swept up by the investigation. Although some will be guilty of other crimes and therefore ‘deserve’ the punishment, many will have their lives ruined even if they can prove that they were not involved.

A report that helps understand who the person is will reassure the public that the justice system is not arbitrary.

What is a crime?

The definition of crime is also changing. Traditionally, it used to be made up of three components: an action, an intention and an effect.

The action was something that someone did, such as hitting someone or taking something. However, it was not enough just to do the action; there needed to be an intention to do wrong. A person who stretched their arms when leaning back in a chair would not expect to go to prison if one arm were to knock into somebody.

For some crimes there is no practical way of getting the evidence to prove all three components. The legal system has the choice of loosening the constraints or allowing the guilty to walk free. That has led to a strict liability approach, such as in ‘possession’ crimes where the person’s intention is not required. The risk with that approach

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is that many actions can result in harm that is not intentional, for instance driving a car.

Industrial crime

Some crimes are easy to automate, such as speeding, where even the vehicle registration plate can be identified by AI. The use of big data and AI can lead to the numbers being caught rising to hundreds of thousands. Those individuals can then be processed through automated legal systems, where there is little legal oversight.

Challenging an offence can be expensive both in time and effort, and the courts are unwilling to overturn the system’s decision.

The risk of that approach can be seen in cases such as the postmaster cases, where the Post Office is alleged to have used a flawed computer system, leading to hundreds of people being prosecuted. Although it is unlikely that the computer will make an error, when the numbers of people who are processed are large even a small problem will be magnified. As the numbers increase for many types of crime there is a risk of social consequences.

To sum up, as both the sensitivity and specificity of the criminal justice system falls there is a risk that faith in the system will fail. The modern criminal expert uses techniques such as disability analysis to assist the court. Unlike the medical model, which focuses on diagnosis and treatment, the disability model gets to the heart of the questions in the judge’s mind. q • To contact Dr Mark Burgin call 0845 331 3304, email drmarkburgin@gmail.com or visit www.drmarkburgin.co.uk

Explosives laboratory marks its 150th anniversary

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IF IT’S BEEN in a crime to do with explosives, the Defence Science and Technology Laboratory’s (Dstl) Forensic Explosives Laboratory (FEL) has seen it. With world-leading facilities, unique in their capability and run by a team of world-leading forensic scientists, the lab exemplifies what Dstl is there for: applying expert science and technology to keeping the UK safe and secure.

The FEL can trace its origins back to 1871, when the earliest forensic science service was established. Now, 150 years later, the lab continues to support high-profile police investigations into the unlawful use of explosives and helps bring those who carry out atrocities such as the Manchester bombing to justice.

Terrorist attacks make up the more high-profile cases dealt with by FEL – Lockerbie, IRA attacks, 7/7 and the failed 21/7 bombings in London, and the Bali bombings in 2002 to name a few – but the lab’s assistance covers much more than people perhaps realise.

About 80% of its cases are related to fireworks and other pyrotechnics.

Examples include fireworks being posted through letterboxes and set off in phone booths and people experimenting in their sheds with instructions they’ve found on the internet.

of explosives and their effects, and he is recognised as having saved many lives.

Dr Dupre, who was reportedly an excellent expert witness and was more than once complimented in court on his straightforward evidence, continued his work in support of the Explosives Department until his death in 1907, and was succeeded in his consultancy by his two sons, who continued to provide this service, as well as military work on explosives during the First World War. The precise origin of the title Forensic Explosives Laboratory is not known, but FEL relocated from Woolwich Arsenal to the former Royal Armament Research and Development Establishment Fort Halstead in January 1986 and then again to Dstl Porton Down in March 2020. q

The history of FEL

Late in the 19th century it was Captain Vivian Majendie who became the world’s first bomb disposal specialist. His history is well known among the scientists who proudly work in Dstl’s newest forensic lab at its site near Salisbury – opened in 2020 by HM The Queen and Prince William.

Captain Majendie’s tale began when, on 11 August 1871, at least two explosions occurred in the Prentice family’s Patent Safety Gun Cotton Co Ltd in Stowmarket, Suffolk. The size of the crater was 10’ deep and 40’ across, with the explosions causing almost complete destruction of the factory and extensive damage to properties in the local area.

More than 20 people were killed and more than 70 injured. More than 180 cases of deafness were caused as a result of the loudness of the explosion, which could be heard as far away as Southwold, 30 miles away.

A formal enquiry into the incident was carried out by Captain Majendie, the recently appointed Home Office Chief Inspector of Accidents – a role he retained until his death in 1898. He realised quite quickly that he needed the services of a qualified chemist and so sought the advice of Dr August Dupre who was, at that time, consultant for the Medical Department of the Privy Council.

Dr Dupre carried out various chemical investigations into the cause of the explosion and gave expert evidence at the Coroner’s Court on 6 September. The association between Majendie and Dupre continued, and by 1873 Dr Dupre had become an unofficial chemical adviser to the Home Office, giving his service in the fields of analysis and control of explosives and the investigation of explosions.

Majendie’s expertise in the study of explosives led to him becoming a pioneer in the fields of bomb disposal and the forensic investigation www.yourexpertwitness.co.uk

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Court leans towards claimants in fire-safety cases

by RYLAND ASH, Dispute Resolution Partner at Watson Farley & Williams LLP

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IN THE RECENT CASE of D R Jones Yeovil Ltd v Drayton Beaumont Services Ltd regarding a fire safety claim, the English Technology and Construction Court (TCC) provided important guidance on the approach it will take when exercising discretion to allow amendments to such claims.

The claimant, D R Jones Yeovil Ltd, had been engaged to undertake works at Adderley Green Care Village in Stoke-on-Trent and sub-contracted mechanical services installations to Drayton Beaumont Services Ltd – the defendant – which were carried out from late 2010 to 2011. However, in late 2011 the employer under the main contract became insolvent and the claimant suspended its works. In 2015 a new employer engaged the claimant to complete the main contract works and carry out further works to turn the site into a neurological unit.

The claimant contended that the mechanical services installation works were defective and incomplete, and on 18 April 2017 commenced proceedings against the defendant. The defendant denied responsibility for the defects and claimed it was underpaid.

The proceedings were listed for trial in March 2019, but in an unusual twist of events they were vacated after the claimant discovered the defendant attended the site in late 2018 and attempted to carry out remedial works to the fire dampers it had installed.

In March of this year the claimant applied to amend its particulars of claim to include claims alleging the defendant was responsible for design defects in the fire dampers as a result of changes to the manufacturer, model and fixing method without the claimant’s approval – the ‘damper design claim’ – and defective fire-stopping to plastic pipework – the ‘pipework fire-stopping claim’.

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Although the original claim included an allegation relating to the inadequate fixing of fire dampers, the damper design claim raised a novel point, alleging that the defendant had overall design responsibility for the dampers and a duty to warn about the limitations of the design, even though the defendant had no design liability under the sub-contract. The pipework fire-stopping claim, meanwhile, was an entirely new allegation based on the defendant’s duties under the sub-contract.

The defendant alleged that a six-year limitation period applied to the new claims, meaning they were now statute barred. The claimant contended that a 12-year limitation period applied so they were still in time.

The court generally has discretion to allow amendments to statements of case unless the limitation period has expired. In determining whether limitation has expired, the court can take one of two approaches: • The ‘conventional approach’, which refers to the doctrine of ‘relation back’, under which any new claim is treated for limitation purposes as having been brought on the same date as the original claim.

• The ‘Mastercard approach’ (from WM Morrison Supermarkets v Mastercard), which treats a new claim as having been issued on the date of the amendment judgment and therefore preserves a defendant’s limitation defence.

The TCC concluded that the Mastercard approach was not appropriate in this case as the defendant had a serious argument that the whole of the new claim was statute barred. The material necessary for determining the amendment application on the conventional basis also formed a significant part of the evidence and argument relied upon at the hearing. The conventional approach was therefore appropriate.

The claimant therefore had to prove the defendant’s six-year limitation defence was ‘knocked out’ by an express deeming provision in the claimant’s terms and conditions that the sub-contract was executed as a deed for the purpose of calculating limitation periods.

After considering the formation of the sub-contract, the TCC found the deeming provision had been incorporated. Therefore, the sub-contract was subject to the 12-year limitation period applicable to deeds, rather than the usual six-year period applicable for contracts, and the claimant’s proposed amendments were not statute barred. The TCC therefore had discretion to allow the amendments.

The existing claim required an investigation of the defendant’s contractual responsibilities in relation to the fire dampers and in its defence the defendant contended it was not responsible for their design. The TCC had to consider the merits of the claim in order to exercise its discretion and decided the damper design claim had no real prospect of success.

As the pipework fire-stopping claim was not statute barred, the TCC considered the only factor bearing on the exercise of its discretion was the merits of the claim.

The TCC considered the claimant had a good arguable case that the defendant’s fire-stopping obligations were wider than the defendant submitted. The TCC was also satisfied that the pleading was sufficiently particularised, despite being based on a general allegation of deficient fire-stopping given in references to a Scott Schedule, which identified specific defects by type. The pipework firestopping claim amendments were therefore permitted.

This detailed judgment highlights the TCC’s continued flexibility towards proceedings over fire safety issues and the courts’ wide discretion to allow new claims into existing proceedings. The defendant’s attempt to rectify the dampers during the course of the proceedings was highly unusual, given it had alleged they were not defective and/or it was not liable for them. The attempted rectification also delayed the proceedings, which had the knock-on effect of giving the defendant a potential limitation defence. q

Has your client's fire claim been denied? [ A RESPONSIBLE POLICYHOLDER pays an annual premium to

cover the cost of repair of damage should a fire occur on their property.

When a claim is made, the insurer is likely to send out a loss adjuster to undertake an initial assessment of the fire damage and file a report. If further investigation is required, a forensic investigator may be assigned to the case to determine the most likely origin and cause of the fire. The insurer then has to decide whether or not to pay the claim.

One reason a claim may be repudiated is because the fire insurance policy may have been invalidated. Typical reasons for that include: • Withholding of information by the policyholder • The insurer being provided with misleading information when the policy was taken out • Failure to meet the insurer’s requirements. An example of that may be where a fire has been determined to be of electrical origin and it is proven that an unqualified person had carried out electrical work.

According to the UK government’s 2019/20 fire statistics, out of the 35,016 house fires recorded, use of smokers' materials were determined to have caused 1,796 fires – 5% of the total. When taking out policy cover, the insured may have been asked whether any smokers lived at the property. If circumstances such as that change during the course of the policy term without the insurer being updated, there may be grounds to void the policy or restrict claims. That may be the case regardless of whether or not the fire was related to smoking.

The insurer owes the policyholder a duty to explain why the claim has been denied.

By carefully checking the details of the policy, a review can determine whether the insurer’s decision was reasonable.

Should your client and the insurer disagree as to what caused the fire, or as to whether the application of a policy term was reasonable, then an independent fire investigator could be appointed to undertake an independent investigation and their opinion may well be helpful to your client's case.

That is where Strange, Strange and Gardner come in. As part of their service, you will receive either a verbal or written report within 48 hours of scene attendance to let you know their initial findings. Even if you have come late to the case and the fire scene is no longer accessible, they can perform a desktop review of the case by examining existing materials such as the fire brigade report, insurance reports, photographs, witness statements and retained evidence, to formulate scientific and evidence-based conclusions and opinions.

They provide cost-effective reports promptly, and their assistance is only a telephone call away. q www.yourexpertwitness.co.uk

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Pet abduction set to become criminal offence [A NEW CRIMINAL OFFENCE of pet abduction is set to be

introduced under government plans to crack down on pet theft, following a reported rise in pets being stolen during the pandemic. The new law will recognise the welfare of animals and that pets are valued as more than property.

The new offence is one of several recommendations in a report by the government’s Pet Theft Taskforce, which was launched in May 2021. The taskforce, made up of officials from Defra, the Home Office and the Ministry of Justice along with operational partners including the police, CPS, Border Force and local government bodies, considered evidence from academics, animal welfare organisations, campaign groups, enforcement agencies and industry experts.

The report found that seven in 10 of animal thefts recorded by the police involve dogs. Evidence suggests that around 2,000 dog theft crimes were reported to police in 2020, causing considerable distress for owners and their pets alike. The price of some breeds increased by as much as 89% over lockdown as people spent more time at home, potentially making dog theft more appealing to criminals looking to profit from the spike in public interest in owning a pet.

The taskforce’s recommendations include the creation of a new ‘pet abduction’ offence. Pet theft is currently treated as a loss of property to the owner, but that does not reflect the true severity of the crime. The new offence will prioritise the welfare of pets as sentient beings and recognise the emotional distress to the animal in addition to its owner.

Other recommendations include identifying and tracking cases, improving the recording of ownership and transfer data and tackling the fear of crime.

The changes will make it easier for the police to track pet abduction incidents, making it easier to clamp down on offenders. The Home Office will ensure that pet abduction is recorded in a consistent manner across police forces, while officials from each department will be able to review the way data is collected across the criminal justice system.

Taken together, the proposals will make it far harder for thieves to steal and sell pets, make it easier for the police to catch them and ensure that the impact on the animal is reflected in the sentences or penalties given to offenders.

Environment Secretary George Eustice said: “Pets are much loved members of the family in households up and down the country, and reports of a rise in pet theft have been worrying. Pet owners shouldn’t have to live in fear, and I am pleased this report acknowledges the unique distress caused by this crime.”

The proposals were given a guarded welcome by animal law experts.

Dr Iyan Offor is a lecturer in law at Birmingham City University whose

research focuses upon animal law and environmental justice.

Dr Offor commented: “This new offence could be regarded as a step in the right direction, offering better legal recognition of the value of animal lives. However, many problems remain.

“Our legal systems have been lagging far behind by continuing to treat animals as property and we are still treating companion animals very differently to other kinds of animals in the law. For example, it is much more difficult to gain public support for better farm animal protections than it is for companion animals.

“The fact that these animal law developments continue to prioritise companion animals over farm animals suggests that the motivation behind them lies not with improving animals’ lives, but by improving the lives of their owners.” q

Agency protects animals from medical misuse

[THE GOVERNMENT AGENCY responsible for overseeing the

safety, quality and efficacy of veterinary medicine is the Veterinary Medicines Directorate. As an executive agency of the Department of Environment, Food and Rural Affairs it contributes to its objective of protecting public health and meeting high standards of animal welfare.

Its work also helps the Food Standards Agency to protect and improve the safety of food people eat.

The directorate is responsible for monitoring and taking action on reports of adverse events from veterinary medicines, testing for residues of veterinary medicines or illegal substances in animals and animal products, assessing applications for and authorising companies to sell veterinary medicines, controlling how veterinary medicines are made and distributed, advising government ministers on developing veterinary medicines policy and putting it into action and making, updating and enforcing UK legislation on veterinary medicines. q

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Company’s vigilance praised as another fake interpreter is unmasked [ANOTHER RECENT CASE of someone claiming falsely to be

qualified as an interpreter to carry out court work has drawn comment from both the police and the organisations representing bona fide interpreters.

A 34-year-old woman from Wakefield received a conditional caution after she admitted fraud by false representation. The woman had applied to be an interpreter and when asked to provide proof of her qualifications she presented a certificate which was later identified as a fake by staff at thebigword, the company responsible for security checks on candidates.

Mark Daley, chief operating officer at thebigword, explained: “We take both vetting and security very seriously at thebigword and have a rigorous on-boarding procedure that makes certain each qualification we receive is thoroughly checked. This strict vetting process ensures

Linguists’ institute lobbies on behalf of members in Afghanistan [THE Chartered Institute of Linguists (CIOL) has responded to

the plight of Afghan interpreters caught up in the recent turmoil in their country.

CIOL made urgent contact with the UK Ministry of Defence regarding interpreter access to the Afghan Relocations and Assistance Policy scheme, which offers relocation and other assistance to interpreters and others who worked with UK bodies in Afghanistan.

In the letter it made the point that the institute counts civil servants, defence and ex-armed forces staff among its membership. It pointed out that face-to-face interpreters do so much more than interpret language – they interpret culture, navigate difference and complexity and often help both sides negotiate challenging situations. “We can only imagine,” the CIOL said, “how much this must have been the case in Afghanistan.”

In a statement issued on 27 August, the institute said: “As a UKbased and internationally-engaged organisation, we can only be glad that the UK Armed Forces and diplomatic service have done what they could in Kabul and elsewhere in Afghanistan in recent days; of course we wish they could have done more.

“Our thoughts are with our fellow linguists. We continue to monitor the situation and talk to the relevant stakeholders and other like-minded organisations to see what can be done to help.”

The CIOL’s statement followed a similar call from the Institute of Translation and Interpreting, whose chair, Paul Appleyard, wrote to the Secretary of State for Defence, the Foreign Secretary and the Prime Minister on 20 August, imploring the UK government to do all in its power to ensure that those still in the country are evacuated as rapidly as possible. q

that we have the highest quality professionals in our network of linguists, who can aid our clients such as the police.”

The case comes after a number of changes were made to security protocols following the conviction of Mirwais Patang on eight counts of fraud, three counts of forgery and one count of conspiracy to commit fraud in February, as reported earlier this year in Your Expert Witness.

Simon Cole QPM, who is the Chief Constable of Leicestershire Police and the National Police Chief’s Council lead for language services, said: “This sort of criminality will not be tolerated. Not only is it deceitful, but it puts the criminal justice system at risk. We have worked with our approved language service providers to ensure forged and false documents can be identified effectively.

“This recent arrest highlights how effective that work has been. I am pleased that a potential risk to the police and criminal justice system from the fake interpreter has been prevented at the earliest opportunity.

In particular I am grateful to thebigword staff and West Yorkshire Police for the way this matter has been speedily and efficiently dealt with.”

Bodies representing interpreters were also quick to praise thebigword for their actions. John Worne, chief executive of the Chartered Institute of Linguists (CIOL), commented: “Professional linguists and the public alike will be reassured by this firm and decisive collective action in protection of standards and the safer and fairer outcomes that properly qualified public service interpreters assure in the criminal justice system. This is a genuine win for public safety and professional standards.”

Mike Orlov, executive director and registrar of the National Register of Public Sector Interpreters, added: “NRPSI joins the police and the CIOL in congratulating thebigword on uncovering this ‘fake’ interpreter’s ID. It is good to see agencies engaged by the public sector are also checking identities and uncovering those who should not be engaged in the critical work of giving voice to the voiceless.

“Following its mandate to protect the public, NRPSI encourages all public sector organisations and their appointed agents to not only check IDs, but to also always insist on engaging with public service interpreting practitioners who are experienced with Level 6 PSI qualifications.” q

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MEDICAL NOTES [

DESPITE THE EASING of restrictions across the UK and elsewhere, the COVID pandemic continues to cast a pall over healthcare delivery. Perhaps the one standout effect of the disease was the huge impact on care home residents – by definition among the most vulnerable sections of society.

In July the CQC, the healthcare sector’s regulator, published data on the number of care home residents who died with a connection to COVID. Although the figures do not imply that COVID was the cause of death, or that there was any hint of defective care, the bald figures are staggering: over 39,000 care homes residents died in the 12 months from April last year to this March who had suspected or confirmed COVID-19.

• The battle to care for patients in the face of such a pandemic could only add to the stresses felt by the medical profession – and it did. The GMC’s annual training survey found a third of junior doctors felt a high or very high degree of burnout last year, compared to a quarter that has been the norm. It has long been recognised that junior medics face an unusual level of stress, but the past year and a half has brought home to the rest of us just how much those stresses have been exacerbated.

• Levels of care have also been put under strain for other sectors of society. We have been reporting for longer than we can remember the increasing wait times for heart diagnosis and treatment. The latest research results from the British Heart Foundation indicate that waiting lists could double in the course of the next two years, and take five years to recover.

• The pandemic has also led to a spike in cases of eating disorders among young people – particularly the under-19s.

Despite more young people being treated for eating disorders, there are nonetheless even more waiting for treatment, indicating that increasing numbers are outrunning the ability of mental health services to treat them.

A further handicap is a lingering perception among some that eating disorders are a ‘lifestyle choice’ and not a genuine mental illness. Sufferers will beg to differ.

• No matter what the medical need, discrepancies in levels of care pervade in this country: discrepancies of geography, sex, race and class. Counterintuitively, it is this government that has resolved to do something about the discrepancies.

The new Office for Health Improvement and Disparities (OHID) will be tasked with tackling the problems. Again, the COVID pandemic has flagged up the inequalities, with ethnic minorities and poorer areas suffering disproportionately.

• The long list of clinical sectors affected by the pandemic also includes those whose staffing levels have been sacrificed to ‘redeployment’ to fight the pandemic. One of those is the provision of low vision clinics, in particular to treat age-related macular degeneration (AMD).

AMD is the biggest cause of sight loss among older people and causes considerable distress, but eye care services have seen a perfect storm of shielding, redeployed staff and smaller numbers in clinics to enable distancing.

• Which brings us to Brexit – honest! The shortage of transport personnel and other issues caused by the UK withdrawal from the EU have led to a shortage of blood tubes. That in turn has led to nonessential blood tests being cancelled until later in September.

• On a happier note, medical staff have been helping to bring a cheer to all our lives these past couple of months. I’m referring to the many physios who looked after our Olympians and Paralympians in Japan, helping to bag a healthy haul of medals of all colours. q

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Burnout among junior doctors soars during pandemic [THE COVID-19 PANDEMIC increased

burnout among doctors and risks reversing recent improvements in their workloads and wellbeing. That was the warning issued by the General Medical Council (GMC) in a report published on 27 July.

The regulator’s annual national training survey was completed by more than 63,000 UK doctors, all of them either trainees or trainers.

Responses to questions about burnout were the worst since they were introduced in 2018.

A third of trainees said they felt burnt out to a ‘high’ or ‘very high’ degree because of their work, compared to around a quarter in previous years. Three in five said they always or often felt worn out at the end of a working day, and 44% felt their work was ‘emotionally exhausting’ to a high or very high degree. Trainees’ responses to seven wellbeing-related questions, across all medical specialties, saw a swing towards

negative answers compared to previous years.

GMC chief executive Charlie Massey commented: “It is not surprising that burnout has worsened during the pandemic, but we cannot expect doctors to continue to operate at this level of intensity. As health services emerge from COVID pressures will remain, but we must not risk reversing the gains that have been made in recent years.

“The danger is that, unless action is taken, workloads and wellbeing will continue to suffer, and future burnout rates could get even worse.

As we move on from the pandemic, it is vital that doctors’ training and wellbeing needs are central to service recovery plans. This year’s results should be a blip caused by COVID, not part of a new normal.”

Although trainees and trainers reported worsening levels of burnout, the quality of training remained high and similar to pre-pandemic

levels. Around three-quarters of trainees rated the quality of teaching as ‘good’ or ‘very good’, and 88% described their clinical supervision as ‘good’ or ‘very good’.

Eight in ten (81%) of trainees said they were on course to meet their curriculum outcomes for the year, although one in 10 – a substantial number in real terms – were concerned about progressing through their training.

Mr Massey added: “The pandemic has caused inevitable disruption, and some training opportunities have been lost. But, thanks to the efforts and hard work of trainers and trainees, where training has been possible the quality has been sustained.

“We know many trainees remain concerned about their training progression, so we are working hard to ensure training is flexible, fair, and helps prepare doctors to meet current and future patient needs.” q

Blood test cancellations: inform patients and note results, says defence body [IN RESPONSE to global shortages of blood tube

products, NHS England issued guidance on 10 August on prioritising blood investigations. Further advice was issued in a letter to GPs, pathology services and others affected on 26 August.

NHS England says it expects supplies to be affected until mid-September. As a result, it has asked all providers of NHS services in England to follow a set of measures, where safe and in line with senior clinical decision making.

For primary care, the measures are: • All primary care and community testing must be halted until 17 September, except for clinically urgent testing.

Examples of clinically urgent testing include bloods that are required to facilitate a two-week wait referral, bloods that are extremely overdue and/or essential for safe prescribing of medication or monitoring of condition, bloods that, if taken, could avoid a hospital admission or prevent an onward referral and those with suspected sepsis or conditions with a risk of death or disability.

• Unless clinically urgent, practices should move blood test activity scheduled before 17 September to later in the year when supply improves.

The Medical Defence Union (MDU) advises that, if a practice has taken those steps but is still likely to run out of products within 48 hours, they should notify their pathology incident director and their NHS England and NHS Improvement regional team.

The guidance issued on 10 August clarifies that changes to blood tests should be explained to patients. The MDU says that if doctors need to defer a blood test, they should discuss their rationale with the patient and explain it is deemed clinically safe to do so. If possible, they should provide a timescale for when a blood test will be undertaken once the shortage has resolved.

Crucially, doctors should ensure that any decision to defer testing

and discussions with the patient are thoroughly documented in case they are later called upon to justify the delay. The documentation might cover: • The rationale behind why the test has been deferred, including any input from a relevant specialist • Explanation provided to the patient • Any comments or questions from the patient • Any safety-netting advice provided and follow-up plans in place, such as calling the practice/clinic within a certain timeframe if they don't hear from them.

The MDU says: “Members can look to us for support and advice with any patient complaints arising from delays in testing.”

NHS England and NHS Improvement also state that they have made system regulators, including the CQC, aware of the guidance and have confirmed with NHS Resolution that any clinical negligence claims that may arise from the blood tube shortage ‘…will be captured in the usual way by the respective state indemnity schemes, the Clinical Negligence Scheme for General Practice and…the Clinical Negligence Scheme for Trusts’.

The guidance advises that ‘any incidents should be reported in line with usual guidelines’. q www.yourexpertwitness.co.uk

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BMA to fund surgeon’s case against GMC [DOCTORS’ UNION the BMA is supporting

the legal case of a surgeon found to have been racially discriminated against by regulator GMC. In a report on its website the BMA related the story of Omer Karim (pictured), who won an employment tribunal claim against the GMC, with the tribunal upholding his claim that the GMC had racially discriminated against him. The GMC has now lodged an appeal against that decision and the BMA is to fund Mr Karim’s legal costs.

Mr Karim was a consultant urological surgeon at Heatherwood and Wexham Park Hospitals NHS Foundation Trust (now the Frimley Health NHS Foundation Trust). During his time there the trust made several investigations into his conduct, eventually referring him to the GMC. After almost four years of investigations, the GMC subjected him to a fitness-to-practise tribunal. That tribunal then determined Mr Karim had done nothing wrong.

Mr Karim argued that, while the investigations into his conduct continued for years, similar complaints against a white colleague were quickly dropped. In August 2018, Mr Karim brought claims against the GMC, including a claim of direct race discrimination – and an employment tribunal found in his favour.

In June of this year the employment tribunal judgement commented it was concerned there was ‘a level of complacency about the operation of discrimination in the work of GMC or that there might be

discrimination infecting the referral process’.

The judgement also said the GMC was ‘looking for material to support allegations against Mr Karim, rather than fairly assessing matters presented’.

Mr Karim told the BMA: “I have been a member of the BMA for nearly 38 years and to have the BMA’s support going forward and defending my win is very important to me. My professional and personal life was devastated in 2014 simply because I stood up and told the truth. I spoke out in support of patient care at the hospital and as a result I was victimised by the trust. I was penalised for not being a white doctor and the impact on my and my family’s life has been catastrophic.

“In my opinion, the GMC lacks insight and for it to appeal a judgement from an independent tribunal merely adds insult to injury.

Ethnic minority doctors are already disadvantaged by being referred by their employers to the GMC more than twice as often as their white counterparts. Even the GMC’s own commissioned Fair to Refer report, published in 2019, said as much.”

Mr Karim added: “Four in 10 doctors in the UK are from minority ethnic backgrounds. It’s totally unacceptable that doctors like me, who give so much to the NHS and without whom our health service could not function, should feel that the dice are loaded against us both at work and by our regulator, the GMC.” q

New body will tackle health inequalities

[A NEW Office for Health Improvement

and Disparities (OHID) will officially launch on 1 October as part of the Department of Health and Social Care (DHSC), with the aim of tackling health inequalities across the country.

It will be co-led by the newly-appointed Deputy Chief Medical Officer, Dr Jeanelle de Gruchy.

Health disparities across the UK are stark: for example, a woman living in Blackpool will on average live 16 fewer years in good health than a woman born in Brent, London and it is known that someone’s ethnicity can have a significant bearing on their health outcomes.

The new body will tackle the top preventable risk factors for poor health, including obesity caused by unhealthy diets and lack of physical activity, smoking and

alcohol consumption. It will work across the health system to drive forward action on health disparities, including improving access to health services across the country, and co-ordinate with government departments to address the wider drivers of good health – from employment to housing, education and the environment.

Health and Social Care Secretary Sajid Javid said: “The COVID-19 pandemic has exposed the disparities that exist within our country. We know the virus has had a greater impact on those with poorer health and we must ensure we give people the tools they need to maintain a healthy lifestyle, while relieving pressures on our NHS. “By focussing on preventing and not just

treating poor health, the Office for Health Improvement and Disparities will tackle health disparities to break the link between people’s background and their prospects for a healthy life. I look forward to Dr Jeanelle de Gruchy coming on board to co-lead the OHID, bringing her extensive knowledge to deliver a meaningful reduction in health disparities for people up and down the country.”

The office will help inform a new crossgovernment agenda which will look to track the wider determinants of health and reduce disparities. The OHID will bring expert advice, data and evidence together with policy development and implementation to ensure action on improving health is better informed, more effective and more joined-up. q

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Regulator publishes data on COVID deaths in care homes [

IN JULY the Care Quality Commission (CQC) published data showing death notifications involving COVID-19 received from individual care homes between 10 April last year and 31 March this year. The data shows that a total of 39,017 deaths were reported during the year with suspected or confirmed COVID. There were two peaks in Quarter 1 (18,261) and Quarter 4 (13,208).

The impact of the pandemic on people who draw on and work in adult social care services has been devastating, the CQC says. Despite the best efforts of staff, COVID-19 has contributed to a significant increase in the number of deaths in nursing and residential care settings.

Throughout the pandemic, CQC encouraged care providers to be open with people in their care and their loved ones and most providers have ensured that information about the circumstance of people’s deaths is shared appropriately.

In the statement accompanying the data release the CQC stresses the importance of noting that death notifications do not in themselves indicate poor-quality care, particularly given the potential influence of variable factors – including rates of local community transmission, size of the care home and the age and health and care needs of the people living there. Moreover, many notifications relate to the deaths of care home residents which occurred in other care settings.

The data on the number of death notifications involving COVID-19 from care homes across all regions was presented alongside government data on all COVID-19 deaths. That is because care homes are part of the local community and are impacted when COVID-19 is prevalent in the local area.

The data covers deaths of residents involving COVID-19 under the care of the provider as notified to CQC, regardless of where the virus was contracted or where the

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death occurred, including in the care home, in hospital, in an ambulance or in any other setting. For example, a resident may have been admitted from a care home to hospital with a fracture, contracted COVID-19 while in hospital, and subsequently died without returning to the care home. The provider must notify CQC of the death of their resident and that it was involving COVID-19, but it would not necessarily indicate that there was COVID-19 present in the care home.

Kate Terroni, CQC’s chief inspector for adult social care, said: “In considering this data it is important to remember that every number represents a life lost – and families, friends and those who cared for them who are having to face the sadness and consequences of their death.

“We are grateful for the time that families who lost their loved ones during the pandemic have spent meeting with us and the personal experiences they have shared.

These discussions have helped us shape our thinking around the highly-sensitive issue of publishing information on the numbers of death notifications involving COVID-19 received from individual care homes.

“We have a duty to be transparent and to act in the public interest, and we made a commitment to publish data at this level, but only once we felt we were able to do so as accurately and safely as possible given the complexity and sensitivity of the data.

“In doing so, we aim to provide a more comprehensive picture of the impact of COVID-19 on care homes, the people living in them and their families. It is important to be clear, however, that although this data relates to deaths of people who were care home residents, many of them did not die in or contract COVID-19 in a care home.

“As we publish this data, we ask for consideration and respect to be shown to people living in care homes, to families who

have been affected, and to the staff who have done everything they could, in incredibly difficult circumstances, to look after those in their care.”

In addition to wider on-going monitoring of adult social care services, CQC carried out inspections looking specifically at infection prevention control in care homes during the same period. Those inspections looked at a number of areas, including whether staff had been properly trained to deal with outbreaks and whether staff and residents had adequate PPE and while in a small number of cases inspectors took action to protect people, they found generally high levels of assurance. q

Pain is a complex subject for any expert to assess [

ONE OF THE MOST COMPLEX areas of medical assessment is that of pain. Both medicolegal and personal injury cases involving pain struggle to assess the extent and persistence of pain.

According to consultant in pain medicine and regular contributor to Your Expert Witness Dr Chris Jenner: “One of the difficulties in diagnosing pain is that it is, at least in part, a perceptual experience, which varies from person to person and cannot easily be quantified.

Furthermore, it is not visible or measurable using objective tests.”

The International Association for the Study of Pain (IASP) describes pain as ‘an unpleasant sensory and emotional experience associated with actual or potential tissue damage, or described in terms of such damage’.

According to the Faculty of Pain Medicine (FPM) there are two main types of pain that cause disability and suffering: chronic pain and acute pain.

Chronic pain is described as ‘a persistent pain, which continues after healing or is the result of on-going damage’ Acute pain (also known as inpatient pain) relates to pain occurring during tissue damage and repair, for example during sudden illness, surgery, trauma and burns. The pain typically improves with tissue healing.

According to the FPM, eight million people have chronic pain of at least moderate intensity. A further six million have some chronic pain of some form, and 6-8% of the population have severe pain that prevents some or most activities. The prevalence of chronic pain doubles over the age of 65, but chronic pain can be experienced by anyone.

Most claims relating to pain concern chronic pain – whether that is caused by an injury or clinical negligence. In terms of personal injury there is an established tariff for determining damages. Jenny Jones, a senior litigator with Quittance personal injury solicitors, comments: “Chronic pain claims are particularly complex and the extent of the compensation varies with the assessment of individual cases.”

When it comes to clinical negligence, the issue is much more complex. Chris Jenner explains: “Chronic pain conditions with a nociceptive or neuropathic origin, which are associated with clearly identifiable tissue or nerve damage, are relatively easy to diagnose and thus well-understood by healthcare providers. However, for conditions such as fibromyalgia, complex regional pain syndrome and irritable bowel syndrome, there is often no obvious cause and patients may struggle to obtain a diagnosis.”

Even where a diagnosis has been achieved, treatment regimes can themselves cause medicolegal issues, particularly in light of recent controversies over opioid treatment.

In cases where accurate assessment of pain is required, the first step should be to consult a pain medicine specialist, described by the FPM as ‘a doctor with specialist qualifications who undertakes the comprehensive assessment and management of acute, chronic and cancer pain in adult and paediatric patients, usually working within a multidisciplinary team. Most pain medicine specialists are hospital based, though some work as specialists in the community or other healthcare settings’. q

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Report reveals the true cost and suffering of living with chronic pain [

THE FINDINGS FROM Unseen, Unequal and Unfair: Chronic Pain in England – a report from the charity Versus Arthritis – are stark and illustrate the scale of the public health crisis.

Chronic pain, which is defined as pain which has lasted more than 12 weeks despite treatment or medication, affects around 15.5 million people – a third of the population in England. Of great concern, the charity says, is that 5.5 million people in England – 12% of the population – have high-impact chronic pain, the most disabling form which means a person struggles to take part in daily activities.

Musculoskeletal conditions such as osteoarthritis, back and neck pain, and fibromyalgia are the commonest cause of chronic pain and are the greatest cause of pain and disability in this country.

The impact of chronic pain is unequally felt across different groups in society. People with chronic pain were found to be more likely to live in deprived areas. Additionally, people are more likely to have chronic pain if they are from some minority ethnic groups, if they were women, or if they are older.

According to Versus Arthritis: “We’ve been working hard to raise awareness about musculoskeletal conditions and the impact of the chronic pain they cause. The release of our latest report shares how chronic pain affects us as a nation and what we collectively need to do about the unseen and unequal burden of chronic pain.”

The charity says we need to re-think in how we support people with chronic pain through a far-reaching holistic and comprehensive approach. The report calls on the leaders of local health and care services and public health to: • Identify every person with high-impact pain and offer the support • they need to live well

All aspects of pain and its effects are subjects of study [A NUMBER OF new studies of chronic pain are in progress

or imminent, with five reported on the website of the Pain Relief Foundation during June and July alone.

The latest to be asking for participants is being carried out Anglia Ruskin University and Versus Arthritis. It is an app-based study looking at the relationship between levels of internal body awareness (like the ability to feel heartbeats) and fibromyalgia symptoms. The study will involve people age between 18 and 70 who have been diagnosed with fibromyalgia.

There are two studies currently in train in Liverpool – one at the University of Liverpool and one at Liverpool John Moores University.

At the University of Liverpool, the Pain Research Group at the University of Liverpool have embarked on a study to understand preferences for social support during pain. The study is being carried out online and involves a broad range of people with chronic pain, aged 18-55.

Meanwhile, a team at the University of Bath are involved in a study about the role of mental imagery in chronic pain. The study ‘builds on earlier work that explores the way people think about their pain and how they experience it emotionally’.

The Warwick Study of Mental Defeat in Chronic Pain, being carried out at the University of Warwick’s Sleep and Pain Lab, is embarked on a study of psychological distress and disability in chronic pain.

The lab has also launched a remote access Longitudinal Sleeptracking Study, in which participants wear an ActiWatch for a sevenday tracking period and receive a personalised breakdown of their sleep. q

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• Reduce the health inequalities that worsen chronic pain for the most • deprived, for women, and certain minority ethnic groups.

• Implement plans to address chronic pain, and regularly report on • progress.

In her foreword to the report, Ellen Miller, acting chief executive officer of Versus Arthritis, writes: “The impact of chronic pain is a strong and recurring theme in our conversations with people living with arthritis. They tell us the pain of arthritis can steal life’s fundamentals. It can affect how people move, think, sleep and feel and their ability to work and spend time with loved ones.

“Chronic pain can limit not just what people are able to do, but also how they feel and think. It can prevent people from fully participating in society, slowly eroding the connection to community, until they feel isolated. At its worst, chronic pain reduces and ruins lives.”

Victoria Tzortziou Brown, joint honorary secretary of the Royal College of General Practitioners, reveals the realities of the impact on the NHS: “Every day, people with chronic pain consult doctors, physiotherapists and nurses in primary care. Indeed, people with musculoskeletal conditions – the most common cause of chronic pain – consult their general practitioner on average five times more often than those without these conditions, and musculoskeletal problems feature in around a fifth of all primary care consultations.”

A recurrent theme in the report, and in the personal stories it relates, is that pain cannot be seen. As Ellen Miller says, the report is about the unseen, untold stories of people living with chronic pain.

The report, Unseen, Unequal and Unfair: Chronic Pain in England, can be downloaded from www.versusarthritis.org.

How strong is the link between long COVID and chronic fatigue syndrome?

by DR CHRIS JENNER MBBS FRCA FFPMRCA, consultant in pain medicine and experienced expert witness.

[

THE National Institute for Health and Care Excellence (NICE) guidelines describe long COVID as ‘signs and symptoms that develop during or following an infection consistent with COVID-19 and which continue for more than four weeks and are not explained by an alternative diagnosis’.

After 12 weeks NICE recommends using the term ‘post-COVID syndrome’ to describe the condition. However, the use of the word ‘post’ implies that the acute infection – and any active disease associated with it – has resolved. In reality, it is not currently known whether that is indeed the case.

It has been estimated that around one in five people who are initially infected with COVID-19 will exhibit symptoms for at least five weeks, and in around 10% of patients symptoms will continue for 12 weeks or more. That means that upwards of 60,000 people in the UK are currently living with the effects of long COVID. That experience is not just restricted to those who are hospitalised by their initial infection, although those whose disease is characterised by a higher number of symptoms during the first week do seem to be more prone. Other risk factors include older age and being female.

Asthmatics also appear to be more likely to develop long COVID, but no other links to existing diseases have been found.

The symptoms associated with COVID-19 cover a broad spectrum, and it has been suggested that the condition actually consists of up to four separate syndromes. Symptoms include life-threatening conditions such as Guillain-Barre syndrome, encephalitis and heart conditions, along with less devastating symptoms such as debilitating fatigue – especially after exertion – pain extending throughout the body, cognitive dysfunction (brain fog), headaches, nerve pain and tingling, breathlessness and generalised weakness.

There are remarkable similarities in the symptoms and experiences of people with long COVID and those suffering from chronic fatigue syndrome (CFS). Interestingly, every one of the less serious symptoms of COVID-19 has also been described as a symptom of CFS, and most of the symptoms associated with CFS have been experienced by at least some COVID-19 patients, particularly those who have gone on to develop long COVID. However, while long COVID has been readily accepted as a real entity, controversy still surrounds the diagnosis of CFS. Around 80% of CFS cases are the result of an infection, although the condition may also arise after surgery or a traumatic injury. It is thought that viral infection triggers an immune response in the body that then develops into CFS. The condition has been linked to several viruses, including Epstein-Barr virus (EBV), human herpes virus-6, enteroviruses and echoviruses. While it may seem surprising that many different infectious agents can cause CFS, the reason is thought to lie in the body’s remarkably uniform response to assaults by different agents. That means that any number of viruses may be capable of initiating the syndrome.

There is already evidence that viral infections lead to an increase in CFS cases. A study of EBV, Q fever and Ross River virus found

that, six months after clearing their initial infection, around 12% of participants still met the criteria for a diagnosis of CFS. Previous coronavirus outbreaks have also resulted in documented cases of CFS. In both the recent SARS and MERS outbreaks, long-lasting symptoms were frequently reported by patients. Nearly a quarter of SARS survivors still meet CFS criteria years after their initial infection.

Preliminary reports suggest that a similar proportion of COVID-19 patients will suffer the same fate.

The impact of long COVID on the workplace is still unclear. The All-Party Parliamentary Group on Coronavirus are calling for the condition to be recognised as an occupational disease, and it is likely that many organisations will suffer some degree of long-term absenteeism due to it. The broad spread and fluctuating nature of symptoms may increase the difficulty of both recognising genuine cases and managing employees’ return to work.

Most cases will need to be approached on an individual basis, rather than through a more usual phased return. Thus, existing sickness and absenteeism policies may not be suitable for managing employees with long COVID and may need to be rethought, as a failure to acknowledge or adequately support employees with the condition could leave organisations open to legal proceedings.

Current evidence suggests that, for a proportion of patients, COVID-19 becomes a chronic condition, presenting similar symptoms to those of CFS. In fact, many COVID patients who have gone on to develop chronic symptoms have learned how to manage their condition by drawing on the experiences of CFS sufferers. Historically, the management of conditions with poorly-defined symptoms or uncertain diagnoses has been perceived as less important and given a lower priority.

The emergence of long COVID may lead to an improvement in the general understanding of the long-term consequences of viral infections, including conditions such as CFS, and a wider acceptance of these conditions within the medical profession. That, in turn, may lead to increased funding into research, which is urgently required to give a better understanding of how symptoms develop and can be managed. q • As a consultant in pain medicine and leader in his field, Dr Christopher Jenner is well-known as an experienced and skilled expert witness in a wide range of medicolegal cases involving pain. He has been an expert witness for 15 years and his instructions are broadly divided as claimant (55%), defendant (40%) and single joint expert (5%). He provides reports for both medical negligence and personal injury claims.

His particular areas of expertise include, but are not limited to: neuropathic pain; chronic and chronic widespread pain; chronic pain syndromes; complex regional pain syndrome; phantom limb pain and post-mastectomy pain syndrome; multi-disciplinary pain management; and fibromyalgia. Read his full biography and download his CV at www.medicolegal-partners.com/jenner www.yourexpertwitness.co.uk

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Young people with eating disorders suffer worse from pandemic [THE NUMBER OF under-19s waiting for eating disorder treatment

has reached record levels, as services are struggling to provide timely treatment in the face of overwhelming demand.

New NHS data was published on 12 August by NHS England and NHS Improvement. An analysis by the Royal College of Psychiatrists shows that, while the number of those waiting for urgent and routine treatment has reached record levels during the pandemic, more children and young people are being treated than ever before.

The analysis found that at the end of the first quarter of 2021/22, a year on from the start of the pandemic, 207 patients were waiting for urgent treatment – up from 56 at the same time last year – while 1,832 patients were waiting for routine treatment, up from 441 at the same time last year. In all, 852 patients received urgent treatment, compared to 328 in the first quarter of 2020/21, and 2,600 patients received routine treatment, compared to 1,347 in the first quarter of 2020/21.

An estimated 1.25 million people in the UK have an eating disorder. Such disorders do not discriminate and can affect anyone,

Psychiatrists respond to review of drug abuse treatments

regardless of gender, ethnicity, age or socioeconomic status.

Disordered eating behaviours include limiting food consumption, eating very large amounts of food, purging, fasting or excessive exercise in response to eating, or a combination of those.

Anorexia has one of the highest mortality rates of any mental illness; yet, despite that, eating disorders remain poorly understood.

They are a mental illness, not a ‘lifestyle choice’, and full recovery is possible with access to the right specialist help and treatment.

Dr Agnes Ayton, chair of the Faculty of Eating Disorders Psychiatry at the Royal College of Psychiatrists, said: “The pandemic has had a huge impact on children and young people, with disruption to their schooling, social lives and home lives. Many young people have not received support early enough, causing their eating disorders to become much worse and harder to treat.

“Delays to treatment can put lives at risk. Services are struggling with soaring demand, fewer beds because of social distancing, and an on-going shortage of specialist doctors.

“The government made an ambitious commitment on waiting times, but the pandemic has set us back years. Urgent action is needed to ensure children and young people with eating disorders get the help they need, when they need it.”

The commitment referred to was to ensure that 95% of under-19s receive treatment within one week for urgent cases and four weeks for every other case by the end of 2020/21. The latest data shows just how far the NHS is from achieving that target as a result of the pandemic. q

[

IN JULY the Royal College of Psychiatrists (RCPsych) issued its response to the second report into drug abuse by Dame Carol Black, which focused on treatment, recovery and prevention. The report contains 32 recommendations for change across various government departments and other organisations, to improve the effectiveness of drug prevention and treatment and to help more people recover from dependence.

Professor Julia Sinclair, chair of the Addictions Faculty at the RCPsych, said: “Dame Carol Black’s report is a once-in-ageneration opportunity for government to build the foundation for humane and comprehensive addiction treatment. We welcome Dame Carol’s report and her call to increase investment in addiction services by an additional £552m a year and for this funding to be ringfenced. This will begin to undo the decade of cuts, to enable local communities to improve the quality and access to addiction treatment and support.

“The current commissioning model is not fit for purpose and has caused many people to miss out on potentially life-saving treatment.

We back the report’s call to improve commissioning standards and move towards integrated commissioning. We desperately need to reverse the decline in specialist clinicians leading these services to drive up the quality of treatment offered, as well as train the wider health and social workforce to ensure people with addictions are offered the help they need.

“The Royal College of Psychiatrists’ addictions workforce report last year found a 58% fall in the number of higher trainee places, with five regions in England having no opportunities for such training. We need the clinical leadership of addiction psychiatry to build back services, and ensure staff, volunteers and peer mentors working in services get the high-quality training they deserve.” q www.yourexpertwitness.co.uk

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New guidance issued on working with autistic people

[NEW BEST PRACTICE GUIDELINES have been issued by the

British Psychological Society (BPS) for practitioner psychologists who work with autistic people and their families and carers. The guidelines are based on the current NICE guidance and other published guidelines for autism and, due to the wide diversity in the autistic population – both how autism presents and the level of individual needs – they aim to be as broad as possible.

At their heart the guidelines emphasise a person-centred approach, with a need for autistic individuals to be directly involved in any decisions made about their assessment, care and approaches to intervention. In the case of children, or individuals more severely affected by their autism, it is also vital that parents/carers and the whole family are consulted during the decision-making process to ensure an approach that works for all.

The guidance covers a range of key areas, including talking about autism, assessment, diagnosis and formulation, autism in children and younger people, autism in adults, employment, and autism and the criminal justice system.

It also raises areas for discussion and future research, stressing the role of psychologists, research institutions and ON 1 SEPTEMBER the NHS consultation on its proposals for access to mental health the BPS in ensuring that the research services closed. base continues to develop to fill gaps in If implemented, the proposals will ensure that patients requiring urgent care will be seen knowledge and that emerging evidence is by community mental health crisis teams within 24 hours of referral, with the most urgent incorporated into national guidelines. getting help within four hours. Mental health liaison services for those who end up in A&E Professor Patricia Howlin, chair of the departments would also be rolled out to remaining sites across the country. working group that produced the guidance, They are part of overall service expansion and improvement for mental health outlined in said: “We have made a concerted effort the NHS Long Term Plan. with these guidelines not to advocate any Launching the consultation in July, NHS chief executive Simon Stevens said: “Together particular therapeutic approach, but to with the guarantee that mental health investment will increase each year as a share of the provide guidance and support, based on growing NHS budget – as has been the case each year since 2015 – these new waiting psychological principles, to psychologists times standards are another key milestone in the journey to putting mental health on an equal working with autism. footing with physical health, so-called ‘parity of esteem’.”

“Autism is a highly-complex condition Mark Winstanley, chief executive of Rethink Mental Illness, added: “These standards act as for which the evidence base for causation building blocks on which we can build a potentially first-class model of mental health care and and treatment is continually developing. recognise the universal truth that the quicker we can step in to provide high-quality treatment, The guidance is objective and grounded close to home for someone living with mental illness, the more we improve prospects of in evidence and we hope that it will prove recovery. While they will depend on the right staff being in post, they will also set the bar for invaluable to practitioner psychologists something similar in social care, where so much of someone’s support for their mental illness working with autistic people across many actually takes place.” q different contexts and environments.” q

Consultation closes on access to services [

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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

Mr Ashok Bohra MS MPhil MFSTEd FRCSEd FRCS(GenSurg)

Mr Chris Makin

General & Laparoscopic Surgeon taking instructions on behalf of either claimant or defendant or as a Single Joint Expert.

• Chartered Accountant • Accredited Civil Mediator • Accredited Expert Determiner

www.surgeonexpertwitness.co.uk

www.chrismakin.co.uk

David Bunker Arbitrator & Mediator

N-Able Services Ltd

Disposal & acquisition of businesses, management buyouts, shareholder & partnership disputes, employee disputes and taxation enquiries.

• Chronic pain • Brain injury • Spinal injury • Children & young people • Neurological conditions • Amputations • Complex orthopaedic multi-trauma

E: davidalbunker@outlook.com T: 07831 784006

www.nableservices.co.uk

Dr Thomas C M Carnwath

Dr Gerry Robins MBBS FRCP MD PGCLTHE

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

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

www.tomcarnwath.co.uk

www.drgerryrobins.co.uk

Dr Lars Davidsson MRCPsych MEWI

Mr Sameer Singh MBBS BSc FRCS

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

Specialist in PTSD, anxiety disorders & mood disorders.

www.angloeuropeanclinic.co.uk

Consultant Orthopaedic Surgeon • All aspects of trauma – soft tissue and bone injuries • Sports injuries • Upper and lower limb disorders and injuries • Whiplash injuries Clinic locations – London, Milton Keynes and Bedford

www.orthopaedicexpertwitness.net

Chris Dawson MS FRCS LLDip

Dr Elizabeth J. Soilleux MA MB BChir PhD FRCPath PGDipMedEd

Consultant Urologist with over 17 years experience of medico legal report writing and expert witness work in personal injury and clinical negligence cases.

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

DentoLegal Ltd – Gary M Simon

Mr Bernard Speculand MDS FDS FFD FRACDS (OMS)

www.chrisdawson.org.uk

DentoLegal specialises in the preparation of evidencebased Breach of Duty & Causation and Condition & Prognosis Dental Reports on the instruction of solicitors.

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.dentolegal.com

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

Emma Ferriman Ltd

T Clinic Dental Legal Experts

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

www.emmaferriman.co.uk

Professor Paul Tipton is a specialist in Prosthodontics and Professor of Cosmetic and Restorative Dentistry and one of the UK’s leading dental expert witnesses.

E: experts@tclinic.co.uk

www.tclinic.co.uk/legal-reports/

FHDI - Kathryn Thorndycraft-Pope Examining documents & handwriting • to determine authenticity • to expose forgery • to reveal aspects of origin. Electro Static Detection Apparatus and Mi-Scope used.

www.forensichandwriting.co.uk

www.yourexpertwitness.co.uk

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Study finds choice of implant most important factor in successful hip replacement [ A STUDY ANALYSING over 650,000 hip

replacement patients across England and Wales over 14 years sought to investigate why one hospital has consistently been identified as having better than expected outcomes compared to other settings. The findings have shown that the outstanding hip implant survival results seen in one centre in the UK are associated with implant choice more than surgeon skill.

The study by researchers from the Musculoskeletal Research Unit at the University of Bristol, the NIHR Bristol Biomedical Research Centre and the University of Exeter, using data from the National Joint Registry, has been published in PLOS Medicine.

Mr Jonathan Evans, academic clinical lecturer at the Bristol Medical School: Translational Health Sciences (THS) and lead author, said: “These findings are vitally important to making sure as many of our patients have a good outcome from their hip replacement as possible.

“We want patients across the country to feel empowered to ask their surgeon not only what implants they plan to use for their hip replacement, but more importantly to ask for the long-term evidence that the implant works well. If they do not feel happy with the answer, then patients should feel confident asking for another opinion or even vote with their feet and go to a different hospital.”

In 2017, there were over 822 different types of hip replacements implanted in England and Wales, but the Royal Devon & Exeter NHS Foundation Trust (RD&E) has used only three in the past 14 years. In the RD&E only 1.7% of hips needed to be re-done 14 years after the hip replacements were put in, but in the rest of the country this figure was 2.9%. Given that about 100,000 people have a hip replacement every year, the difference could lead to many more patients needing further surgery.

The researchers considered age, sex and general health in

their analyses and showed that, when the patient outcomes from the RD&E were compared to cases nationwide where the same implants had been used, there was no difference in how many of the hips lasted 14 years. That suggests that consistent use of a reliable hip replacement implant may be a more important determinant of success than the surgeon performing the operation.

Mr Michael Whitehouse, reader in trauma and orthopaedics at the Bristol Medical School: THS and joint senior author on the study, feels the information is critical to help patients make the best decisions about their care. He explained: “It is important to recognise that this study is not about encouraging surgeons to use one particular implant, but to use the information available to them in the National Joint Registry and other reliable sources to choose implants with a track record of long-term success.

“Our study shows that long-term survival of a hip replacement is primarily down to a surgeon's implant decisions rather than the particular way they perform the operation.” q

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Press coverage of joint study brings response from surgeons

[

THE British Orthopaedic Association (BOA), together with the National Joint Registry (NJR), has responded robustly to media reports of a study into a number of orthopaedic operations. In particular, the study, by a team from Bristol University and carried in the British Medical Journal, expressed ‘concern’ that no substantive evidence from clinical trials demonstrated the efficacy of total hip replacements.

That finding was reported in some parts of the press as demonstrating that hip replacement may not be as effective as nonsurgical procedures, placebos or no treatment at all.

It was that conclusion that stung the BOA into its response. The fact that no trials had proved the efficacy of the operations was due simply to the fact that no such trials had been, nor could ethically be, carried out, the BOA said.

In its statement, the association said: “We are concerned at the conclusions of this study, which suggest that various orthopaedic procedures lack evidence of benefit. This study has taken a narrow view of the evidence available for orthopaedic operations.

“In particular, total hip replacement is one of the most effective of all medical and surgical treatments. It has been described as the ‘operation of the 20th century’, and has totally revolutionised the care of patients who previously were crippled by arthritis. It has transformed the lives of many millions of patients, reducing their pain and improving their mobility.”

The statement quoted Professor John Skinner, orthopaedic hip surgeon and vice president of the BOA, who explained: “Randomised controlled trials (RCTs) have great research value but can assess only one thing: uncertainty relating to benefit or superiority of a treatment. If there is no uncertainty, RCTs have no place and there is no uncertainty at all regarding the benefit of total hip replacement in the treatment of

end stage hip arthritis. To look for randomised trial meta-data to prove the value of such a beneficial procedure and be critical that none exists, because it isn’t needed, defies logic.”

Professor Skinner compared the need for such trials with a similar need in respect of parachutes. “An appropriate analogy may be that no one has, nor should they perform a randomised trial to see if wearing parachutes are better than not wearing parachutes, when jumping out of aeroplanes.”

In fact, the study’s authors accepted the proposal that such research may not be necessary in the case of hip replacements.

The lead author, Professor Ashley Blom, is quoted as saying: “Interventions may work even if the evidence base has not yet been established or the observational evidence may be so overwhelming that trials would be deemed unethical or redundant. Hip replacement may be an example of this.”

The BOA and NJR expressed concern that the national press coverage may have caused worries among patients waiting for surgery.

Tim Wilton, orthopaedic surgeon and medical director of the NJR, explained: “The current rules within the NHS ensure that patients cannot even be referred to an orthopaedic surgeon for consideration of hip or knee replacement until they have received many months of pain killers and physiotherapy treatments which have failed to resolve the problem.”

The BOA statement continued: “Overall…we do not consider this study should cause any concern about the current practice of orthopaedics in the UK, as it does not consider the full range of research evidence available. If any patients awaiting surgery have any questions they should discuss these with their clinician at their next appointment.” q www.yourexpertwitness.co.uk

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Medicolegal work is the specialism of physios’ network [WITH AN INCREASING emphasis in

cases of soft tissue injury on the role of the physiotherapist, there has been an increased interest in the area of medicolegal work by physiotherapists.

Physiotherapists and others who have a special interest in medicolegal work are represented by the Medico Legal Association of Chartered Physiotherapists (MLACP) – a specialist network recognised by the Chartered Society of Physiotherapy, the professional body and trade union for the UK’s 53,000 chartered physiotherapists.

The network’s main aim is to support members in delivering high standards of work in a range of medicolegal contexts. It does that through the work of its executive committee and its 200 members in delivering its strategy.

Explaining its remit, the association says: “An understanding of medicolegal matters is required in all areas of physiotherapy practice and at all stages of career progression.

For example, all physiotherapists must understand how key legal concepts such as consent to treatment, confidentiality, duty of

care and duty to report affect the way in which they work with patients.

“Some physiotherapists will choose to develop particular expertise in medicolegal work and may undertake to write medicolegal reports which can be used for a range of purposes.”

The MLACP has over 200 members undertaking a range of medicolegal work. Physiotherapist members who can demonstrate that they are currently educated, trained and competent in medicolegal report writing are eligible for inclusion in the MLACP’s directory of members. q

Horses help with rehabilitation [ONE OF THE BRANCHES of physiotherapy that is used for

rehabilitation after an injury is hippotherapy – in which specially-trained physiotherapists use the three-dimensional movements of a horse’s back to bring about change in the ‘rider’.

The main goals are to improve posture, balance and co-ordinated movement for the client, but the specialist form of physiotherapy that is hippotherapy can also help with communication, mobilisation of joints (particularly of hips and lumbar spine), self-esteem and confidence.

One of the main benefits is that it is a therapy in disguise. Important work is completed, but in a fun, engaging and challenging way. Clients develop close relationships with the specially-selected horses and,

moving forward, they often go on to ride with their peers as a leisure activity or take up riding as a sport.

Suitable for both adults and children, it’s typically – but not exclusively – helpful for cerebral palsy, acquired brain injury, multiple sclerosis, other neurological conditions and some musculoskeletal conditions.

The representative body for hippotherapists, the Association of Chartered Physiotherapists in Equine Activities (ACPEA), demonstrated the potential for hippotherapy in July at the Great Yorkshire Show.

The association’s chair Elizabeth Beckerlegge – who is qualified as an expert witness – joined with others to carry out the demonstration (above) as part of the Yorkshire and Cleveland Riding for the Disabled Association group. q

Physios’ role comes to the fore at the Games [

THE 2020 Summer Olympics and Paralympics, held in Japan from late July to the beginning of September, brought into the limelight the physiotherapists who play a critical support role for Britain’s athletes.

At the Olympics, Team GB fielded a team of 52 physios. Chief physio Nicki Combarro outlined the outstanding work they do: “We’ve got a great team of physiotherapists here in Tokyo with a wealth of experience in high-performance sport, enabling us to support the athletes to achieve their maximum potential.”

Following on from the Olympics, 27 chartered physiotherapists went to Tokyo with the ParalympicsGB team. The same facilities were available to the Paralympic team as were used by the Olympic athletes the previous month.

Lead physio Dawn Ibrahim explained: “Our highly experienced team of physiotherapists out in Tokyo are part of a wider interdisciplinary team of nurses, doctors, nutritionists and psychologists all working collaboratively to support and optimise the physical and mental health of athletes and staff to create the best environment for everyone to thrive in and for athletes to succeed.” q

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Patel should ditch dental age checks, say dentists THE British Dental Association (BDA) has urged Home Secretary Priti Patel to think again on plans to introduce dental checks to establish the age of Channel migrants. It follows reports that a new independent nationwide panel will use dental records and other ‘scientific evidence’ to verify the age of asylum seekers.

The association has vigorously opposed the use of dental X-rays to determine whether asylum seekers have reached the age of 18, stressing they are an inaccurate method for assessing age. The BDA also believes that it is inappropriate and unethical to take radiographs of people when there is no health benefit for them. X-rays taken for a clinically justified reason must not be used for another purpose without the patient's informed consent and must be carried out without coercion and in full knowledge of how the radiograph will be used and by whom.

The new Nationality and Borders Bill, tabled in July, will give the Home Secretary the powers to introduce methods of assessing age via regulation. That new position runs counter to statements adopted by the Home Office in 2016, when the department rejected similar calls from backbencher David Davies MP. BDA chair Eddie Crouch said: “This is a retrograde step from Priti Patel. In 2016 the Home Office ruled out dental checks for migrants, which we considered inaccurate, inappropriate and unethical. In 2021 the science and ethics have not changed.” q

Court case adds to practice owners’ liability worries [A NEW CASE heard at the High Court – Hughes v Rattan [2021]

EWHC 2032 (QB) – has set a far-reaching precedent that dental practice owners, particularly those holding NHS contracts in England and Wales, can be held to be vicariously liable for the actions of their self-employed associates. The case has brought forth comment from a number of sources, including two blogs offering guidance on the British Dental Association website.

Len D’Cruz, head of BDA Indemnity, wrote: “Judge Heather Williams QC has concluded that, although the practice owner did not determine how the associates carried out the treatment, the practice owner is vicariously liable because the associates could not be said to be operating a truly separate business.”

James Goldman, associate director of Advisory Services at the BDA, also offered some advice to associates. Mr Goldman wrote: “You need to know whether you may be liable even if you are not at fault, or whether you are agreeing to pay the practice owner much more than they would normally have to pay for negligent treatment. We have seen some indemnity clauses in associate agreements that are unfair on associates.

“An associate agreement can say that the practice owner has authority to instruct the associate’s indemnity provider to deal with a claim if the associate is not contactable. However, it cannot ensure your practice owner avoids vicarious liability for your clinical work. The best way for practice owners to avoid these liabilities is to work well with their associates as set out above, and to have insurance.” He points out that BDA’s own indemnity insurance now includes vicarious liability cover.

Len D’Cruz points to a separate implication of the judgement that could impact on associate dentists’ self-employment status – a situation he says is probably not wanted by either party. q

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Survey of low vision services highlights need for review [

THE Clinical Council for Eye Health Commissioning (CCEHC), which represents the major clinical professions and sight-loss charities in the eye-care sector, has conducted a survey on the commissioning and provision of low vision assessment services in England.

The survey was conducted over five weeks from 5 April, to gain an understanding of the impact of the pandemic on low vision assessment services in the previous year. It showed that, prior to the pandemic, there was variation in the use of service specifications, protocols and thresholds for low vision assessment. Since the pandemic service provision has been ‘challenging’, with deployed clinical staff, patients and some practitioners shielding, and lower clinic numbers to maintain distancing. That has been associated with a significant fall in certifications of visual impairment during lockdown periods.

Based on those findings, the CCEHC has made a number of recommendations, and has called for low vision services to be included in system recovery and transformation planning.

The recommendations include managing the low vision assessment backlogs by risk assessment of patients waiting, to prioritise those in greatest need and triaging some patients to gain interim support by another part of the system. The aim is to clear backlogs within six months.

The research also recommends a review of existing low vision service provision, protocols and pathways to scope the potential

New guidance sets out AMD care standards

for more integrated services, incorporate remote consultations for prioritisation and follow-up as appropriate, ensure there is domiciliary provision for those that require it and that eye clinic liaison officers are core members of the low vision service team and link across primary, community, hospital and social care.

There should also be information on digital assistive aids such as digital magnifiers and signposting to IT courses for those who are visually challenged.

Service specifications and quality standards for integrated low vision care should be developed as part of a whole systems approach, to ensure consistent access and availability of services, offer a choice, where possible or appropriate, making optimal use of services and identify a ring-fenced low vision budget that can be accessed systemwide to ensure a sustainable service.

CCEHC chair Ms Parul Desai commented: “Many providers have tried to ensure safe services and looked to innovative solutions. The learning from COVID-19 is already changing the way some low vision services are delivered. We encourage all commissioners and providers of eye health services to review their current low vision assessment service provision, particularly use of remote consultations for preassessment review and follow up/monitoring, and their processes for ensuring equitable access to services meeting consistent standards of care. The development of more integrated low vision services has significant benefits for patients, practitioners and organisations across health and social care. The CCEHC will be considering further phases of work to monitor progress.” q

[

THE Royal College of Ophthalmologists (RCOphth) has developed new commissioning guidance for age related macular degeneration (AMD). The National Institute for Health and Care Excellence has accredited the process used by the RCOphth to develop the guidance, which sets out the principles and minimum standards of care for AMD to decrease variations of care across services in England and Wales.

The guidance can support the current and future capacity planning of AMD services to enable the review of services, treatment options and patient pathways to meet the changing needs of the population, and enable local adaptation based on available resource, existing infrastructure, and service demands.

Sobha Sivaprasad, chair of the RCOphth scientific committee, explained: “This guidance will be of practical use for commissioners and providers of health and social care services, as well as users of AMD services. It is estimated that AMD affects more than 600,000 people in the UK and is the most common cause of visual impairment in the older population. It can significantly affect quality of life and independence. The demand for AMD services has already affected the capacity of several ophthalmology departments and is projected to rise as the ageing population increases.”

The guidance states that a patient-focused approach should be the overarching principle when designing local pathways and that eye clinic liaison officers are essential throughout a patient journey.

It is also important to establish joint care with optometry services for diagnosis, referral, and monitoring of stable patients. q www.yourexpertwitness.co.uk

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Waiting lists for heart treatment continue to rise – and could double in two years [

WAITING LISTS for heart diagnosis and treatment could more than double within two years in England due to the pandemic, a new report from the British Heart Foundation (BHF) has warned.

The BHF estimates that the number of people anxiously waiting for heart care and diagnosis could peak at around 550,385 in January 2024 if the NHS in England doesn’t get enough investment and is under increased pressure from COVID-19 or a bad winter. At the same time, the number of people waiting for heart surgery could almost double

by February 2022 compared to pre-pandemic levels, with numbers peaking at 15,384 people.

Even before the pandemic began, around 225,000 people in England were on cardiology waiting lists for heart diagnosis or treatment, while around 8,400 people were waiting for heart surgery.

According to the BHF: “Without decisive action now, we estimate it will take between three and five years for the heart care backlog to recover to pre-pandemic levels.”

Significant delays to care

Long waits for diagnosis and treatment of conditions like coronary heart disease, abnormal heart rhythms and heart failure are emotionally distressing and increase the risk of someone becoming more unwell or even dying while they wait for vital care.

There were 5,800 ‘excess’ deaths from heart and circulatory conditions in the first year of the pandemic in England, and the significant delays to care have likely contributed to that figure.

The NHS says: “Even in a better-case scenario, where alreadypledged government funding supports NHS England to address the heart care backlog more quickly, we estimate it would still take at least three years for heart care waiting lists to return to pre-pandemic levels.

However, the government could reduce the heart care backlog by years if further significant action is taken now.”

The prediction comes against a background of rising numbers awaiting diagnosis and treatment across the UK. NHS England figures published on 12 August and analysed by BHF reveal that 252,354 people were waiting for heart tests and treatment – including invasive heart procedures and heart surgery – at the end of June in England: the highest number on record.

Of those, 53,140 had been waiting over 18 weeks. The number of people waiting over a year decreased in June to 3,806 from a peak of 5,248 in March; however, the figure is still 136 times higher than before the pandemic began when just 28 people had been waiting that long.

There are now 39 people in England who have been waiting over two years for a heart procedure or surgery.

The picture is similar in Northern Ireland, with numbers waiting continuing to rise, according to Northern Ireland Department of Health data released on 26 August.

The statistics reveal that 2,713 people in Northern Ireland were waiting for a cardiac appointment, surgery, treatment or procedure in hospital in June, an increase on the previous quarterly figures. More than two in five had been waiting more than six months and a quarter had been waiting more than a year.

The figures also show 14,961 people were waiting for a diagnostic echocardiogram, with almost half (7,082) waiting more than six months.

Professor Sir Nilesh Samani, BHF’s medical director, commented: “Even before the pandemic began, waiting lists for vital heart care were far too long. As this report shows, the pandemic has since pushed the NHS towards breaking point, with devastating

consequences for the 7.6 million people living with heart and circulatory diseases in the UK. “Delay in diagnosis and treatment of cardiovascular diseases is not just about improving symptoms, however important that is: it is about saving lives. Tragically, we have already seen thousands of extra deaths from heart and circulatory diseases during the pandemic, and delays to care have likely contributed to this terrible toll.” q

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RCOG calls for ban on virginity testing and hymenoplasty [

THE Royal College of Obstetricians and Gynaecologists (RCOG) has called on the government to introduce a ban on virginity testing and hymenoplasty in the UK. In a policy statement the college stressed that there is no reason why either virginity testing or hymenoplasty – or any other procedure under a different name that seeks to reconstruct or repair the hymen – would need to be carried out for medical purposes. Both are harmful practices that create and exacerbate social, cultural and political beliefs that a women’s value is based on whether or not she is a virgin before marriage, the RCOG said.

The scale of the problem is not known in the UK because the procedures are carried out in private clinics and the data is not available. The RCOG expressed concern that the way private clinics are advertising the procedures to women is further perpetuating myths around virginity, and in some cases they are dishonest about what the procedures can achieve.

The UK Government has committed to legislating to ban virginity testing, but has not yet made such a commitment on hymenoplasty.

The RCOG is calling for a ban on both.

RCOG president Dr Edward Morris commented: “We are very concerned that women are either being coerced into having these procedures or feel pressurised into having them so they can bleed during sex and can demonstrate they are a virgin on their wedding night.

“We want to see both virginity testing and hymenoplasty banned in the UK. This will send a clear message that there is no place in the

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medical world for these procedures and that women deserve the right to have ownership over their own sexual and reproductive health.

“We recognise that women seeking these procedures are often in very vulnerable and desperate situations. We would urge healthcare professionals who are approached about virginity testing or hymenoplasty to follow the appropriate safeguarding protocols, to ensure women are able to connect with organisations that can offer support. This should include referring women to police or social services if there is a perceived risk of violence or coercion.”

The RCOG is working with charities, including IKWRO and Karma Nirvana, to ensure there is support in place for women who are being pressurised into proving their virginity in that way.

Diana Nammi, executive director of IKWRO, said: “Virginity testing and hymenoplasty are forms of violence against women and girls and there is no justification for either of these harmful practices, which cause immediate and long-term social and psychological trauma. Like the equally harmful practices of female genital mutilation and forced marriage, both must be banned with immediate effect.

“Far from safeguarding the woman or girl against ‘honour’ based abuse, hymenoplasty paves the way to many forced marriages, where there is an expectation that the bride will present as a virgin.

Most women and girls are unaware that hymenoplasty cannot guarantee bleeding, which can mean that she is left at even greater risk on her wedding night.” q

Why you may need an expert witness in urology In this brief article, consultant urologist CHRIS DAWSON MS FRCS LLDip explains what he has learnt from 17 years of producing medicolegal reports.

[

LIKE MOST SPECIALTIES, the medicolegal work that ensues from urology can be divided between criminal cases, personal injury and medical negligence.

Criminal cases: In my own experience the opportunity for urology expert reports in criminal cases is limited, and predominantly involves rape or sexual assault cases. The reports are usually commissioned by the defence and suggest that the alleged offence could not have taken place because the defendant suffers from erectile dysfunction.

The role of the expert will be to examine the defendant’s records and the claimant.

In routine clinical care the fact that the patient claims to have erectile problems is taken for granted. In criminal cases the veracity of the defendant is for the court to decide. There is no available test to prove the defendant incapable of having a penile erection.

Personal injury: Personal injury work is common for the expert witness in urology and usually involves condition and prognosis reports for male claimants involved in road traffic accidents (RTA).

Often those claimants have multiple injuries involving pelvic trauma and are left with erectile dysfunction due to pelvic nerve and blood vessel trauma.

Causation is usually straightforward in those cases. Many such patients will be helped with PDE5 inhibitors such as Viagra or Cialis. Failure to respond to those treatments often suggests a poor prognosis. Pelvic trauma may also cause male urethral disruption or injury leading to urethral stricture. Urethroplasty or reconstruction may be required.

Claimants of either gender may suffer abdominal trauma during an

RTA, leading to damage to or loss of a kidney. In the majority of cases the other kidney will compensate for the loss, but the expert urologist will be required to comment on prognosis and the risk of damage to the other kidney.

Medical negligence: Compared to other specialties urology appears less prone to claims of negligence, but one notable exception is the management of testicular torsion.

The usual symptom of sudden onset of pain due to twisting of the testicle around the spermatic cord (blood vessels and vas deferens) and the signs of swelling of the affected testicle may be difficult to diagnose. Early intervention is paramount to prevent testicular ischaemia and loss of the testis. Ischaemia can occur as soon as four hours after the onset of torsion.

Where there is diagnostic uncertainty the affected scrotum should be explored surgically as soon as possible. Most claims arise when exploration has allegedly not taken place early enough and the testis has required removal. Reports in this area usually require a view on liability and causation, and sometimes also extend to condition and prognosis as well.

Urogynaecology: The ureter runs in close proximity to the female uterine cervix and is prone to injury at that site during gynaecological procedures such as hysterectomy, removal of large ovarian cysts or emergency caesarian section. The bladder may also be injured during those procedures.

Liability will be a matter for the expert witness in gynaecology to decide upon, and the urology expert witness will be asked to comment on matters of causation and condition, and prognosis. q

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New course equips aesthetic surgeons to understand patients’ state of mind [ THE British Association of Aesthetic

Plastic Surgeons (BAAPS) has launched an initiative aimed at advancing the framework for mental health assessment in cosmetic surgery.

Around 20% of BAAPS surgeons referred patients on for second opinions in 2020, but with rising concerns about mental health and body dysmorphia this new course has been designed to fully equip surgeons with the necessary skills to respond to psychological factors in patient consultations, including the ability to refuse those deemed psychologically unfit for surgery.

“Carrying out a thorough psychological assessment before any surgery is crucial,” said BAAPS council member Caroline Payne. “One of the hardest things to deal with is how to say no to patients and this course teaches us how to set those boundaries, when to ask for second opinions and when to ask for onward referrals.

“As plastic surgeons it is crucial to have a real insight into the psychological as well as surgical aspects of caring for patients undergoing aesthetic surgery and an appreciation of when referral to a clinical psychologist may be in a patient’s best interests rather than surgery.”

A day-long programme developed by clinical health psychologists Dr Joy MacInnes and Dr Esther Hansen, Psychological Skills for Surgeons, comprises a series of didactic lectures and face-to-face interactions, all with the aim of improving surgeons’ understanding of patient psychology.

The first half of the programme centres on the patient-surgeon relationship and aims to uncover the aspirations of the patient in order to allow surgeons to effectively manage expectations.

The second part is focused on exploring what the patient considers to be the physical function of surgery. It explores the psychological impact of surgery and considers the psychosocial expectations of the patient, addressing how to set boundaries with regard to onward referrals and second opinions.

The applied psychological theory covered in parts one and two will be put into practice in the latter half of the programme.

Using actors to enact scenarios, surgeons will be tested on their ability to respond to patients’ evolving understanding of surgery, factoring in how to adjust their decision-making according to behavioural changes.

The final part of programme addresses how to respond to psychosocial factors, including dissatisfaction with surgery, psychological distress and mental health concerns – both previous and ongoing.

Part four will also delve into the topic of body dysmorphia; how to set up a framework for assessment and onward referral to a psychological professional.

The launch of the new course came in the same week that Katie Price announced her latest bout of cosmetic surgery: a full body overhaul, complete with liposuction, eye and lip lifts, and a Brazilian bum enhancement. Speaking to ITV’s This Morning, the star responded to claims that she may be suffering from body dysmorphia, a mental health condition that the course addresses how to identify.

Former BAAPS president Rajiv Grover commented: “There is evidence that suggests people who struggle with their psychological health can feel pressured to turn to ‘quick fix’ procedures to improve their appearance.”

Caroline Payne added: “Surgery is not a cure for unhappiness. It can actually lead to depression in patients who are not properly screened beforehand.” q

Plastic surgeons’ association celebrates 75 years in style [TOWARDS THE END of the second world war – in 1944 – Sir

Harold Gillies put forward the idea of an association of plastic surgeons in order to uphold the standards and safeguard the interests of the specialty. On 20 November 1946, 36 surgeons attended the first meeting of the new association and elected Gillies as their president.

In celebration of its 75th anniversary, the British Association of Plastic, Reconstructive and Aesthetic Surgeons (BAPRAS) is holding a one-day scientific conference in the newly-redeveloped Royal College of Surgeons of England building, as well as a series of six free paper and poster webinars in October and November.

The programme for the scientific conference includes: A history of Gillies; Military – origins of specialty in war; BFIRST – the history of and what we are doing now; Research – the next 75 years; and Mentoring – how are we supporting you?

Founded in the aftermath of world war as the British Association of Plastic Surgeons, the association had the objectives of relieving sickness and protecting and preserving public health by the promotion and development of plastic surgery. The aim of the association was to advance education in all aspects of plastic surgery.

Now, 75 years later, BAPRAS is spearheading the Think Over

Before You Make Over campaign, to address the worrying lack of consumer awareness about how to choose safe and appropriate cosmetic surgery.

Every year, says BAPRAS, thousands of people in the UK put themselves at serious risk of physical and psychological harm by undergoing bad or inappropriate surgery that could be easily avoided by asking some simple questions about their treatment.

There are a number of worrying trends. Research for the campaign found that a quarter of all people having cosmetic surgery in the UK do not check their surgeon’s credentials, a fifth aren’t aware of the risks associated with the procedure and a further 22% aren’t even clear on the potential outcomes of their procedure before going ahead. Furthermore, 27% are not aware if any aftercare is available should something go wrong.

Rushing into surgery without consideration can cause lasting damage, the research found: more than half (59%) of patients who undertook surgery less than two weeks after their first consultation are actually less confident about their appearance afterwards.

Led by BAPRAS, the Think Over Before You Make Over campaign provides a comprehensive range of advice on what everyone needs to know, so that anyone choosing to have surgery is choosing safely. q www.yourexpertwitness.co.uk

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Leg ulcers: confusion over diagnosis and treatment leads to problems

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

[LEG ULCERATION is a common medical

problem and diagnostic difficulty may lead to inappropriate treatment. For example, a venous ulcer must be treated with compression bandaging, but an arterial ulcer must not be compressed. Disastrous outcomes may result.

Antibiotics are mandatory in the management of diabetic foot ulcers but useless in venous ulceration. I have advised in several cases where misdiagnosis has led to poor outcomes with inappropriate treatment.

Causes of leg ulceration

Venous leg ulcers: the diagnosis was confirmed by ultrasound imaging

The more frequent causes of leg ulceration, which frequently coexist, are: • Venous disease such as varicose veins or previous deep vein • thrombosis • Arterial disease due to blocked arteries • Diabetes – arising from damage to peripheral nerves from diabetes • Trauma – injuries to the leg • Rheumatoid arthritis causing ‘vasculitis’ in the skin, which damages • tiny blood vessels • Cancer of the skin Each of these conditions has specific tests which can be used to identify the problem, so the diagnosis can be made and appropriate treatment instigated.

Diagnosis – identifying the cause of the ulcer

Venous disease is the most common cause of leg ulcers. That type of ulcer usually occurs at the ankle or in the lower calf, but may not be accompanied by visible varicose veins. Rheumatoid disease and cancer of the skin may also cause ulcers in the same region.

Arterial disease is common in elderly patients and usually produces toe or foot ulcers, which are painful. Diabetes also produces foot ulcers, which are often not painful due to the presence of peripheral neuropathy.

Traumatic ulcers frequently occur on the shin, a region commonly affected by injuries – especially in more elderly patients.

Methods of investigation

The most important diagnosis to identify in a patient with a leg ulcer is lower limb arterial disease. When the arteries become blocked due to atherosclerosis of arteries – perhaps as a result of a smoking history – ulceration of the foot and toe may occur. That condition is correctly referred to as ‘limb-threatening ischaemia’. Treatment of the condition cannot be deferred and urgent action to improve blood flow is required. Delayed treatment can lead to rapid advance of the ulceration and the need for limb amputation.

The most simple method of investigation is to measure the ankle blood pressure using a Doppler ultrasound probe – a system widely available in hospitals and GP surgeries. The ankle blood pressure should be the same as that in the arm, or only slightly less. Large reductions in blood pressure indicate that lower limb arterial disease is present and urgent referral to a vascular surgeon is required.

Venous disease is a common cause of leg ulceration and normally arises in the region of the ankle. That is an important diagnosis to investigate where the arteries appear to be normal. NICE Clinical Guideline 168 recommends that patients with leg ulcers are referred to a vascular service

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for investigation of the venous and arterial systems. That is done with ultrasound imaging, which can identify the cause of a venous ulcer as well as showing the location of blocked arteries.

Patients with long-standing leg ulceration can achieve ulcer healing in a few months once varicose veins are treated using a modern minimally invasive technique. Compression treatment with stockings can be advised where surgical treatment is infeasible.

Diabetic ulcers should be suspected where a foot ulcer appears in a known diabetic patient. A new ulcer should be an indication for urgent referral – within 24 hours – to the local diabetic foot multidisciplinary team, where diabetologists, vascular surgeons, podiatrists and nurses can determine the best strategy for management. Detailed advice on the management of diabetic foot ulcers is contained in NICE Guideline 19. Delayed management of a diabetic foot ulcer may lead to rapid spread of severe infection in the foot, leading to the need for a major limb amputation.

Cancer of the skin is a less common cause of leg ulceration, but should be suspected where a ‘venous ulcer’ fails to heal in response to appropriate management, or where the clinical appearances are not consistent with those of a venous ulcer. Delayed treatment may lead to the need for extensive surgery to remove the ulcer and this may include limb amputation.

The management of any leg ulcer deserves investigation with appropriate tests, so that the correct treatment can be started as soon as possible. Failure to arrange appropriate investigations expediently may comprise substandard treatment and lead to adverse outcomes, including the need for amputation of the limb.

Clinical problems leading to litigation

The most common problem leading to litigation in my experience is delayed identification of the diagnosis. It appears to be common practice for a leg or foot wound presenting to a patent’s GP to receive wound care. While that is appropriate, unless the cause of the leg ulcer is immediately obvious, continued treatment with wound dressings over weeks or months is not appropriate without establishing the diagnosis.

I have advised in cases where limb ischaemia has been the cause of leg and foot ulceration and wound dressings have continued while the limb slowly deteriorated to the point where the only possible treatment was limb amputation.

In another case, a compression bandage was applied to a limb thought to have a venous ulcer without evaluating the arterial system first using a Doppler ultrasound probe. The blood flow to much of

the skin of the leg was cut off by this treatment leading to extensive gangrene and loss of the limb.

Skin cancer giving rise to leg ulcers is a less common problem, but often challenges medical services in arriving at the correct diagnosis, which may not be suspected initially. I have seen a patient who had a squamous cell carcinoma of the leg arising from the skin managed by compression bandaging over a 20-year period. Fortunately, the tumour was readily excised. In another case, the diagnosis was established after a protracted period of treatment and limited investigations.

Amputation of the limb was required to remove the tumour.

Diabetic patients with peripheral neuropathy commonly develop foot ulcers. Treated correctly, they will usually heal. However, lower limb arterial disease may coexist with neuropathy, so immediate investigation and treatment of arterial disease is the standard of care in such patients. Even so, the loss of one or more toes may be inevitable in such cases and proving causation may be difficult where the only adverse outcome was loss of a toe.

Litigation in diabetic foot cases may pose difficulty because the arterial disease that arises lies in the vessels furthest down the leg and affects blood vessels which are beyond the limits of modern vascular surgery to repair. The defendant may assert that the limb would always have been lost, if not immediately then after a limited number of months.

In some instances readily treated arterial disease is present further up the leg and must be treated expediently to achieve a successful outcome, avoiding amputation. If investigation and management of the lower limb vascular system was delayed resulting in amputation, causation may be proven in such cases.

In conclusion, leg ulceration is a common problem in clinical practice and achieving a good outcome requires that the correct diagnosis is identified by appropriate investigations. Where an adverse outcome, such as limb amputation, arises following a delay in diagnosis or inadequate investigation of the problem, a claimant may have a successful case. q

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