Your Expert Witness Issue No. 59

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contents IN THIS ISSUE 7

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Opening Statement

NEWS 8 Judge calls for inquiry into CPS expert witness 9 Moves to remove consumer protection come under fire 9 New campaign addresses injustices on site VIEWPOINTS 11 The CPR and CrimPR rules for experts really do matter 12 Fitness for prison: it’s not as straightforward a decision as it seems FORENSIC ACCOUNTANCY 13 Ransomware is seen as biggest cyber threat 13 SFO announces oil industry corruption successes 15 How can expert witnesses support the courts in their response to the pandemic?

17 Why expert determination is a fitting alternative to litigation

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CONSTRUCTION & PROPERTY ISSUES 18 Judgement clarifies law on construction payment notices THE OIL INDUSTRY 19 Oil disputes: the ins and outs of hedging FIRE INVESTIGATION 20 The Fire Safety Act 2021: what your client needs to know

A to Z WEBSITE GUIDE 21 Our A to Z guide to the websites of some

of the country’s leading expert witnesses.

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EXPERT CLASSIFIED 56 Expert Witness classified listings 60 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 23 Medical Notes

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NEWS 25 GMC begins review of its core guidance 25 CQC reveals accidental radiation exposure figures 26 Report quantifies excess deaths due to Emergency Department ‘crowding’ MEDICO-LEGAL TRAINING 27 Failings highlight need for training for medical expert witnesses CLINICAL NEGLIGENCE 29 NHS redress scheme sees fall in claims and provision 29 BMA books offer guidance on medico-legal issues 29 Clinical negligence compensation bill could swallow up tax rise NOISE-INDUCED HEARING LOSS 31 Noise-induced hearing loss: claims are on the increase DENTISTRY & MAXILLOFACIAL SURGERY 32 What can a lost tooth cost?

33 Pandemic drives increase in antibiotic prescribing by dentists

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OPHTHALMOLOGY & OPTOMETRY 37 Government must address needs of children with sight loss, commission says 37 Private cataract treatment is a double-edged sword OBSTETRICS & GYNAECOLOGY 38 More women take up COVID vaccination in pregnancy 39 Extra funding will help avoid brain injury in babies 39 Report highlights on-going inequalities in maternal death rates ORTHOPAEDICS 41 Nerve injuries after total hip replacement 43 Report features findings on COVID-19 effect on joint replacements PODIATRY 44 Podiatry hails blueprint for future VASCULAR MEDICINE 45 What are the causes and treatments of venous thrombosis in the arm?

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CARDIOLOGY 47 Record numbers await heart tests, BHF finds PLASTIC, RECONSTRUCTIVE & HAND SURGERY 49 Surgeons call for Code of Candour following fat freezing complications 49 Breast implant guidance is updated 50 Book will celebrate the work of hand surgeons PSYCHIATRIC & PSYCHOLOGICAL ISSUES 51 Debate rages around diagnosis of PTSD 53 Mental illness is twice as prevalent among refugees in detention, study finds 53 Psychologists call for ban on isolation booths 53 How do we treat the psychological effects of RTCs? PAIN 54 What is the link between trauma and fibromyalgia? www.yourexpertwitness.co.uk

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Opening Statement [DESPITE THE ON-GOING PROCESS we are undergoing to emerge from the COVID pandemic –

notwithstanding the recent alarums regarding the omicron variant – now is still a good time to reflect on ways in which the justice system has adapted during the emergency, and how expert witnesses have been in a position to smooth the transition to an online life.

The Family Court is a relevant place to look for ways experts have done their bit. It is perhaps an extreme case because the pandemic and consequent lockdowns have led to a spike in divorces and other family cases. The resulting backlog has caused stresses to all areas of the justice system, but by working together, experts and the system have learnt to streamline the process. Fiona Hotston Moore of FRP Advisory explains how adapting to new ways of working has helped to keep the system running.

• Not all experts have been doing the decent thing, however. In two cases recently the judge in a criminal court has castigated the CPS and their expert for falling short in their appreciation of where their obligations lie. The latest concerned the failings of an expert in a murder trial, which must be a cause of unease to us all.

The judge has called for an investigation by the CPS, a call supported by the Expert Witness Institute.

• Keeping cases out of the courts is of course in everybody’s interest, and cases involving financial issues are particularly suited to expert determination – a form of alternative dispute resolution. Finding an expert who has the skills to find a solution acceptable to all parties – bearing in mind the fact that the expert’s determination is enforceable – is of paramount importance, so having a source of advice to go to is a great help. Many professional bodies, including the Institute of Chartered Accountants in England and Wales, hold useful directories.

• Expert accountancy comes to the fore when investigating cyber crime, which has blossomed during the past couple of years when everyone has taken to the internet to carry on their business. The next major threat anticipated is a massive increase in ransomware attacks. A form of blackmail, ransomware attacks involve a business’s data being effectively ‘kidnapped’ by cyber criminals, who demand a ransom to release it from their encryption. Accountants PwC have the lowdown on what the future may hold.

• Despite the moves by major economies away from fossil fuels in response to the global climate crisis, the truth is that oil-based products are still at the core of much economic activity. Keeping track of the latest moves in the oil market is an industry in itself. Where there is an oil market there will be licence agreements and other contracts, and where there are contracts there will be disputes. So says industry expert Liz Bossley of the Consilience Energy Advisory Group – and she should know, with getting on for half-a-century of experience in the market. She offers us the benefit of all that experience.

• Where there is a lucrative market there will also be those willing to contravene the rules to make a gain, and the oil industry is again no exception. The Serious Fraud Office is the enforcement agency tasked with bringing wrongdoers to justice and it has reported some impressive successes in uncovering fraud in the international oil industry – particularly involving Iraq.

• When an industry contravenes the rules in a systemic way, often the main victims are employees who suffer discrimination or, worse, injury without compensation. A new campaign

by National Accident Helpline is seeking to uncover injustice in the construction industry, not known as the kindest of employers and the subject of an investigation into so-called blacklisting in past decades. q

Ian Wild

Ian Wild, Director of Business Development Your Expert Witness

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Judge calls for inquiry into CPS expert witness [ THE JUDGE in a recent murder trial has suggested the CPS

undertake an inquiry after it was found that the prosecution’s expert witness had ‘lost sight of his overriding duty to the court, and failed to comply with the requirements of Crim PD Part 19 and the CPS Guidance to Experts’.

Concern had first been raised by the defence team a week before the trial when they asked for the prosecution expert’s evidence to be declared inadmissible.

However, the judge did not have to rule on the matter because the prosecution counsel decided not to call the expert in question, a Dr David Ho, as a witness.

The judge, Mr Justice Fraser, concluded: “Taken as a whole

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and viewed in the round, the situation regarding Dr Ho is of great concern. This was a trial on a murder charge, with a mentally ill defendant. It is important in any case that experts obey the rules that govern the admissibility of expert evidence, but it is particularly important in a case such as this. Whether Dr Ho had potentially lost the necessary degree of independence and objectivity, his awareness of his overriding duty is to the court, and his approach to his task, are in my judgment matters that ought to be investigated by the CPS. “The lack of clear and unambiguous answers by Dr Ho to questions raised by the defence prior to the trial, which the court indicated should be answered and which the prosecution itself accepted should be provided, is another concern. I have not reached final conclusions on any failures by Dr Ho; the application by the defence to exclude his evidence was not argued. It is unlikely, however, that the prosecution decision to abandon him as an expert witness was unconnected with these failings. Regardless of that, there is sufficient prima facie material to raise sufficient concern to justify an inquiry.”

Simon Berney-Edwards, chief executive officer of the Expert Witness Institute, commented: “This case is extremely concerning: not just because of the nature of the failings of the prosecution’s expert, but because this is the second time in a few weeks that the Crown Prosecution Service have had to withdraw their expert evidence in a case before trial because of failings of the expert.

“We hope that the CPS will undertake the inquiry and that they will consider the actions that should be taken to ensure that they use expert witnesses that are properly trained and have been vetted.” q

Moves to remove consumer protection come under fire [

THE LAW SOCIETY OF ENGLAND AND WALES has attacked the proposal by the Solicitors Regulation Authority (SRA) to discontinue the post six-year run off cover (PSYROC) scheme and the Solicitors Indemnity Fund (SIF).

Its president I Stephanie Boyce said: “The SRA has today outlined its intention to make the marketplace less safe for consumers by getting rid of PSYROC and SIF. “Solicitors want consumers to be protected and one of the things on which the profession prides itself is that it offers a service from highly-trained professionals who are adequately and appropriately insured for the rare occasions something goes wrong. The removal of PSYROC and SIF will have a huge impact on the consumers affected.

“The average successful claim is over £34,000, which is a large amount of money for most people. The consumers who will suffer will employ solicitors on a reasonable assumption that they would have comprehensive protection if something went wrong.

“The SRA is suggesting that this comprehensive protection is removed, but it is yet to demonstrate that the removal of PSYROC will have any material impact on the cost of legal services or lead to any improvement in the market for legal services.

“Solicitors strive to provide the best service – but they also want the best consumer protections. It is our belief that retaining SIF would be in the best interests of consumers and the profession alike.” q

New campaign addresses injustices on site [ A NEW CAMPAIGN to tackle work-related rights within the

construction industry was launched in November by National Accident Helpline.

Rights on Site aims to address the treatment of construction workers should they have an accident at work or be facing any unfair treatment.

It will highlight the need for a change in culture and enable workers to get the justice they deserve. An online poll was conducted to understand the culture around making personal injury claims and 42% of British male workers said that the prospect of getting justice would be an influential factor in making their decision.

As well as addressing the injustices, the campaign will explore the harsh realities of ‘blacklisting’ – the secret vetting system applied by some construction firms. Despite the Employment Regulations Act 1999 (Blacklists) Regulations 2010 making blacklisting in relation to trade union activity illegal in the UK, the fear of being blacklisted is still prevalent today and it is preventing workers from making a personal injury claim.

Jonathan White, legal and compliance director at National Accident Helpline, explained: “No one should ever feel bullied or shamed into not coming forward about any unfair treatment or injustice that they’ve experienced on the job – it’s a matter of doing the right thing.

“Ultimately, we go to work to earn a living, and if that job for some unfortunate reason results in an injury through no fault of our own, we are entitled to carry on living our lives without worrying about bills or supporting our family. We believe that Rights on Site will help right many wrongs that construction industry workers currently face. In the coming weeks, we will be calling for justice and sharing thoughts from the workers themselves who have witnessed it first-hand.” q

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The CPR and CrimPR rules for experts really do matter

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

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THIS IS a morality tale, with some examples of expert witness disasters which were the fault of those who should have known better.

First, in the case of R v Steven Sulley & Ors, eight defendants were accused of fraud in selling voluntary carbon credits (me neither). Investigations were carried out by the Metropolitan Police, supervised by the CPS, and the chosen expert was one Andrew Ager, who it seems had little idea of how an expert should conduct himself. I write about his quite shocking failings in my blog at chrismakin.co.uk/the-worst-expert-witnessand-the-winner-is/, and one will be amazed at how far he fell short of the standard required of an expert: no academic qualifications, not read any of the texts on the subject, he had lied to his opposing expert (a world-renowned expert on the topic) during a meeting of experts, he had no record of the material supplied to him by the police… need I go on?

The trial collapsed and there would have to be a review, and perhaps a retrial in the many cases in which this Ager chap had been the expert.

And fraud is not a no-harm matter; there were 70 victims of this scam, many of them elderly people who had invested life savings in the scheme, and for them there would be no justice.

That couldn’t happen ever again, could it?

Oh yes it could! On 16 October 2021, at the same Southwark Crown Court (I know it well), a similar case collapsed. This was an alleged scam where coloured stones with a 600% mark-up were sold to around 200 victims who were told they were diamonds. One of the accused was Lewis Bloor, an actor who had appeared on The Only Way Is Essex. The trial collapsed on two grounds: a failure by the CPS to disclose evidence and a conflict of interest with experts which had not been declared.

Failure to disclose evidence is not the subject of this article, except to say that any half-competent expert knows the rule: Record, Retain and Reveal. In other words, keep a record of all the evidence, whether or not it is used; keep it safely; and show to the other side everything you have. That the same Metropolitan Police and the CPS, who had featured in the Steven Sulley case above, had failed to follow these simple rules is disturbing.

The other reason this trial collapsed does involve experts, and it was a very basic reason: conflict of interest. A key stage in the prosecution was for an expert to say what the value of the glass stones would have been if they had been diamonds. The experts called were Dreweatts auctioneers, a firm which had a lucrative contract with the Met to auction jewellery and watches seized in raids and prosecutions. Narita Bahra QC, defending, said: “At the time of instruction the company was awaiting the outcome of their tender for the contract to be renewed.

The prosecution did not originally disclose the offer of a conditional fee agreement by the experts to the police who were paying their fees.

Those experts had already given evidence in another trial, in the middle of their contract with the Metropolitan Police where their relationship with the police was not disclosed.”

This is shockingly basic, and that the Met and the CPS should have made such basic mistakes twice begs the question of who is defending the public from alleged scammers.

Then on the civil side we have a case where again the basic rules of evidence were ignored by public servants. The case is Good Law Project Ltd, R (On the Application Of) v Secretary of State for Health

and Social Care [2021] EWHC 2595 (TCC). Topically, it concerned government contracts for the supply of Covid antibody tests.

An expert economist, Ms Nicole Robins, was instructed by the Secretary of State. She produced an expert report which was served shortly before a procedural hearing in July 2021, and an application was made for it to be admitted in evidence. The application failed, the court finding that it did not meet the most basic requirements of the CPR; for example, it did not list the material on which the expert had based her opinions, which deprived experts for other parties of the opportunity to consider that material. The court told the Secretary of State of the failings, so that there would be time to remedy the defects before the next hearing.

That came on in August 2021, but the defects were not remedied.

Setting out a number of defects, the judge said this: “Fourthly, the court has little sympathy with any litigant who simply ignores the rules in this way. Endless opportunities for compliance are not in accordance with the overriding objective. These requirements are not optional extras, only to be complied with by a litigant and their expert if the court states in a specific case that they are to apply. They apply in all cases.”

Again, basic mistakes which should have been avoided, by public servants who should have known better. And in this last case, even after the judge had set out the faults in the expert report, they were still there when the substantive hearing came on. Unsurprisingly, the judge still refused to admit the report and that would have had a serious effect on the outcome of the case.

The moral is clear: choose your experts with care, and make sure they are experts not only in their basic profession but have taken the trouble to learn, from such bodies as The Academy of Experts, how to conduct themselves as experts. Simples! 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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Fitness for prison: it’s not as straightforward a decision as it seems In his latest in a series of articles on the criminal expert, Dr MARK BURGIN BM BCh (Oxon) MRCGP DCH CPE Dip Med Ethics explains how disability experts identify those who should be dealt with differently to achieve a better outcome.

[THE PRISON POPULATION is evolving: prisoners

are getting older, partly as a result of longer sentences, but there is a new group of pensioner prisoners.

Prisons are having to provide residential and even nursing home care to prisoners suffering from a range of serious diseases.

Dementia is top of the list of diseases on the criminal expert’s mind, but it is a challenging diagnosis to make even with the latest scans. Assessing people who are disabled by age using conventional means can involve up to five different specialists.

Disability experts use a holistic approach, looking for psychological, physical and hidden disabilities. Their report provides all the answers to the court’s questions at low cost and using a model that is straightforward to understand. Early recognition of disabilities can ensure that the correct prison is chosen as well as appropriate treatment. As the number of deaths from natural causes continues to increase there is an interest in identifying those with restricted life expectancy. Disability analysis provides early warning of when rehabilitation is unlikely to be successful.

Childhood trauma

Those who have suffered childhood trauma end up in the criminal justice system, where they cause disruption. They often have personality disorders, PTSD and substance misuse, meaning that their prognosis is poor outside of prison. Surprisingly, a secure environment can reduce or even reverse their decline and early and lengthy prison sentences can be therapeutic. However, on the other hand short sentences without behaviour modification is highly damaging to those vulnerable prisoners.

The psychiatrist may struggle to detect the markers of psychosocial disruption that characterise those in the earlier stages. A disability analyst may get a clear picture of what is happening and suggest alternatives, such as trauma therapy, which prevent deterioration. It is important to recognise if the accused has developed a personality disorder and is unlikely to respond to therapy. The change from victim to perpetrator is more obvious in changes to function than to symptoms.

Insight

Although it is assumed that most accused can follow a court case, understand their crime and instruct their legal team, a proportion are not able. Hidden disabilities can disrupt even those with normal intelligence, such as those with neurodifferent thinking. PTSD causes a problem with memory – for instance, dissociating when reminded of trauma. It is challenging for lawyers to identify those hidden disabilities even when their client appears distracted and describes similar problems at school and work.

A simple test is to ask the accused – or prisoner – what their crime was and what were the components of that crime. A third make significant errors with the first, two thirds with the second. The importance to justice of prisoners not understanding their crime has

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been debated, with some believing that the purpose is to keep them out of society anyway. The problem with that approach is that if the prisoner is released they will continue to pose the same risks unless they are rehabilitated. Capacity assessments are useful to identify such problems.

Purposeful activity

Many of those who turn to crime have a lack of purposeful activity in their life: ‘The devil makes work for idle hands’. A central part of the prison rehab process is based around work and study, and there are carrots and sticks to encourage that. Fitness for work in prison is approached differently from outside. Outside, any person who has mild disability is given permission not to work if they do not want to: many mildly disabled people choose to work rather than take benefits. In prison it is essential that all those who are capable of work or study do so; it is part of their recovery.

It is not unusual for a prisoner to argue that they are unable to work but then carry out similar activities such as sport or illegal drug supply. It is essential to determine the extent of any disabilities so that appropriate activities can be offered. There may need to be reasonable adjustments to ensure compliance, but both the prison and the prisoner benefit. At 65 years old the life expectancy is 20 years, and without a sense of purpose the risk of mental illness is high.

The prison system is expensive and it could be argued that leaving disability decisions to prison staff is a false economy. I have shown how prisoners who are elderly, traumatised, lack insight or need purposeful activity could benefit.

It is true that disability reports are cheap, easy to obtain and holistic, but should every prisoner have a disability report? It may be time for a local trial to see whether it assists the court to know what the prisoners need, so that they are safe to release. q • To contact Dr Mark Burgin call 0845 331 3304, email drmarkburgin@gmail.com or visit www.drmarkburgin.co.uk

Ransomware is seen as biggest cyber threat

SFO announces oil industry corruption successes

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[FOLLOWING A SUCCESSFUL INVESTIGATION and conviction

ALMOST TWO THIRDS (66%) of UK business leaders expect the threat from cyber criminals to increase over the next 12 months, according to the latest cyber security survey of business and technology executives by accountants PwC. The findings reinforce the concerns of UK businesses about different cyber threats, as well the potential vulnerability of their supply chains.

Over the past year a number of prominent ransomware attacks have caused a significant impact on organisations already dealing with the challenges posed by the COVID pandemic. There is also now the added threat of ‘ransomware as a service’, in which ransomware developers lease out their malware in exchange for a share of the criminal profits. PwC’s research found that 61% of UK respondents expect to see an increase in reportable ransomware incidents in 2022.

Bobbie Ramsden-Knowles, crisis and resilience partner at PwC, said: “It’s impossible to ignore the threat from ransomware attacks as criminal groups become more brazen and scale their operations through ‘ransomware as a service’ and the use of affiliate criminal groups. At PwC our threat intelligence team has already tracked more ransomware incidents globally up to September 2021 than in the whole of 2020.

“Ransomware has the potential to rapidly disrupt an organisation’s entire business, across geographies and functions. For organisations without a framework for managing enterprise-wide crises there is an acute need to develop and embed one, to be able to respond to this type of disruptive event in a co-ordinated way.” q

of four individuals for corruption at energy industry supplier Unaoil, the Serious Fraud Office (SFO) recovered criminal gains of almost £100,000 from a former senior executive.

Stephen Whiteley, a former territory manager for Unaoil, was found guilty in July 2020 of paying over $500,000 in bribes to win a $55m contract for Unaoil to supply oil infrastructure in Iraq. The SFO secured the convictions against Whiteley and three other senior oil executives in an investigation which uncovered schemes to pay a total of $17m in bribes to win $1.7bn in contracts for Unaoil in Iraq.

Commenting on the court order made on 3 November, Emma Luxton, Head of Proceeds of Crime and International Assistance at the SFO, said: “The SFO relentlessly pursues those who line their own pockets with illicit gains and we have a proud record of recovering funds for victims and for the UK taxpayer.”

This latest recovery means the SFO’s confiscation of illicit gains since 2017 stands at well over £1.2bn. Earlier this year, the SFO was praised

by HM Crown Prosecution Service Inspectorate for its work to recover the proceeds of crime, with cases ‘handled proactively and efficiently by dedicated and skilled staff.’

The investigation into Unaoil led the SFO to corruption at another oil industry player, Petrofac Ltd, and in October Petrofac Ltd had been ordered to pay £77m after it admitted failing to prevent senior executives from systematically paying £32m in bribes to win over £2.6bn in oil and gas contracts in the Middle East. It was the third set of convictions in the case after David Lufkin, former Head of Sales at Petrofac, pleaded guilty to 11 counts of bribery in 2019 and three counts of bribery in 2021. q

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How can expert witnesses support the courts in their response to the pandemic?

FIONA HOTSTON MOORE of FRP Advisory outlines the ways expert witnesses can support legal counsel amid increasing pressure on the UK court system

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THE COVID-19 PANDEMIC has brought additional pressure and changes to UK court proceedings. A recent report by the House of Lords indicates there has been a significant rise in the number of court cases as a result of the pandemic and the impact it has had. It has also shown that the pandemic has accelerated the funding deficit, adding more stress to a system that was already under considerable strain.

An example of this can be seen in the Family Court. Before the onset of the pandemic in March 2020 there were nearly 56,000 outstanding cases waiting to be heard; and while proceedings were switched relatively quickly to virtual hearings that spring, that backlog had escalated to 67,000 cases by mid-summer 2020 alone.

Not only has there been a notable rise in the number of divorce cases following periods of lockdown, there has also been a surge in the number of family shareholder disputes. Such disputes are becoming increasingly common across a wide range of industries, including farming, retail and manufacturing.

More significantly, the report estimates that, even if days spent in court could be increased, it might take three years to reduce the existing backlog to pre-pandemic levels.

Against that backdrop of increasing pressure, it is clear that urgent steps are needed to help relieve the strain on the system. The House of Lords has shared a series of recommendations to help clear the backlog, including increasing available court time by utilising the new Nightingale courtrooms and making greater use of part-time and retired judiciary. Further recommendations include a more innovative approach to cases, including using technology for virtual hearings and greater use of alternative dispute resolution (ADR) such as mediation.

But there is more that can be done to alleviate pressure in addition to those measures. As part of that, it is crucial that the skills and expertise of expert witnesses, and the role they can play in supporting matrimonial cases and commercial disputes, are more widely understood and utilised to help address the mounting backlog of cases.

Increasingly, forensic services experts are called to give evidence and be cross-examined concurrently, which helps clients to avoid what can be a costly court process. They also play an increasingly important project management role in mediation and ADR.

Giving concurrent evidence in ‘hot tub’ hearings

‘Hot tubbing’ is a colloquial term which refers to the court process of calling expert witnesses to give evidence and face cross-examination concurrently, rather than sequentially, and is a practice that is growing in prominence.

Although it has been available in the English courts for many years, adoption of the practice has been much slower here than it has in other countries. However, with the move to virtual hearings and a willingness to try new approaches, the courts now seem more willing to adopt hot tubbing for cross-examination of experts.

Allowing expert witnesses to give concurrent evidence makes the whole process more streamlined and is encouraged to reduce court costs. In family cases the average divorce costs £15,000; but where the matter requires a hearing and the attendance of expert witnesses to give evidence on the valuation of a business, the costs can be considerably higher. For example, if three expert witnesses were previously lined up to be cross-examined sequentially over the course

of three days, bringing them together to be cross-examined concurrently instead would see the timeframe reduced to less than a day. Not only will that help to reduce court fees, but also the costs of the expert witnesses, lawyers and barristers involved.

Of course, an expert giving evidence in the hot tub is likely to have vastly different experience from one who faces the more traditional approach of sequential cross-examination. In the hot tub the process adheres to a structured discussion between the experts and barristers, which is chaired by the judge; so it is typically less adversarial. The experts are encouraged to comment on each other’s views, to clarify common ground and to reduce perceived disagreements as far as possible.

Ultimately, the expert witness will have less thinking time in the hot tub and will face questions from fellow experts alongside questions from the barristers, which will quicken the overall process.

It’s fair to say that virtual hot tubbing, while daunting, can be an extremely cost-effective process of giving evidence. Ideally, the joint statement of experts will have been produced and agreed between them before the hearing, and the barristers and judge will have agreed an agenda for topics to be considered at the hot tubbing.

To help prepare the process and drive efficiency ahead of the hot tub, experts should address a number of practical issues, including: • Determining what IT platform will be used and sharing the details • with the others attending • Receiving the court bundle before the hearing and downloading it • onto a local computer • Establishing who will attend the hearing – including assistants – and • ensuring all those attending have stable connectivity • Ensuring there is no background noise or potential for interruption

The growing prominence of mediation and ADR

Forensic experts are increasingly invited to attend mediation, arbitration or roundtable discussions, with the intention of assisting the parties involved to reach a settlement before it escalates to the considerable expense of a court hearing. ADR can be very effective in reducing both the costs of litigation and bringing long-standing and stressful disputes to a conclusion.

Not only can forensic experts add value before mediation – in preparing documents ahead of ADR, to explain the positions to the mediator or arbitrator and assist the parties in understanding the strength and weaknesses of their respective positions – they can also assist in dealing with any accounting or tax questions during the meeting.

With the growing backlog of cases, the courts increasingly view claimants who do not try mediation as a first measure to resolve a dispute unfavourably. There is on-going discussion about the idea of making mediation compulsory – albeit there is a concern that this would make it less effective and it could be perceived as a box-ticking exercise. In our experience, mediation can be very effective in resolving disputes even where the parties have very different views of the financial position, providing the mediation is entered into with an open mind. q www.yourexpertwitness.co.uk

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Why expert determination is a fitting alternative to litigation

by DAVID COOK and CHRIS GAHAGAN of DRC Forensics

[EXPERT DETERMINATION: it’s something that we handle quite

frequently, and which we consider is a quick, efficient and costeffective means of resolving disputes and contentious situations.

Expert determination is a form of dispute resolution which is an alternative to litigation, usually for the resolution of a dispute between the parties by an expert. It can also be used in some situations where there is not an actual dispute, for example where a valuation of a private business is needed.

Expert determination is applicable to many situations – not just financial or accounting disputes – although that is the area we deal with as expert accountants. The parties agree the process with the expert, subject to any specific requirements of any contract or agreement in force. The split of the expert’s fees between the parties is normally decided by the expert.

The outcome is private to the parties. It is faster and cheaper than litigation and is binding on the parties.

The choice of expert is no different from the choice of expert in a litigation case. The expert needs to know their own subject as well as the rules of engagement.

They also need to be independent, fair-minded, competent, experienced and able to apply a transparent process.

The best way to assure competency is to select an experienced expert from a recognised professional body. When considering appointment, don’t be afraid to ask the expert for their detailed CV and question their experience.

It is quite common for agreements or contracts to have a clause stating that, where there is a financial dispute, it shall be determined by an independent accountant to be agreed upon by the parties, or in default of agreement appointed by, for example, the president of the Institute of Chartered Accountants in England and Wales (ICAEW).

The ICAEW maintains a register of competent accountants which includes us. Applicants will, in the first place, be directed to the register with a view to agreeing on and selecting a firm that suits their requirements and has the expertise they are looking for.

Once appointment has been confirmed the expert will contact the parties, setting out their terms of business. That will normally

state that all communications will be to all parties. It will not usually include a fee estimate or timetable until the expert has had full details of the dispute. In our case it would include confirmation that the determination will be conducted in accordance with the provisions of the relevant agreement or document and the ICAEW’s or the Academy of Experts’ rules for expert determination, to the extent that that is permitted by the agreement.

The parties will need to agree as much as possible and set out the areas of dispute, which needs to be as specific as possible to reduce the time and cost of the process. The more specific the dispute, the easier it is to progress the matter efficiently.

The expert will issue a procedure and timetable, which will usually allow both parties to make initial submissions, then comment on the other party’s submissions, and then respond to the expert’s points and make further submissions as the expert considers necessary.

Matters will usually be conducted by email and other correspondence as required. In some cases it may be considered necessary to have part of the presentations at a meeting. The expert would use the meeting to put questions and obtain information, although it is rare for this to be necessary.

It is normal practice for the determination to be issued once the expert’s fees have been paid.

The expert decides how the cost should be split between the parties.

It is also usual to have provision that, if one party does not pay, the other can pay the balance to have the determination released.

Normally, as per the ICAEW’s rules, the determination will not give reasons or details of the basis of the findings; its purpose is to provide an answer ­– it is not an expert opinion or report. It should be clear, concise and define the scope of the dispute and how it has been decided, and should not include unnecessary material.

Expert determination is more efficient than litigation: it is faster, cheaper, private and binding. It is enforceable. It does need the parties to fully embrace the procedure and co-operate and there is no recourse to the court unless there is manifest error or breach of procedures. q www.yourexpertwitness.co.uk

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Judgement clarifies law on construction payment notices

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

[

AN IMPORTANT DECISION in the Technology and Construction Court (TCC) (Downs Road Development LLP v Laxmanbhai Construction (UK) Limited [2021] EWHC 2441 (TCC)) has clarified for the first time that payment or pay less notices served without a genuine belief in the sum stated as due may be invalid and open to challenge.

The minimum requirements covering interim payments in construction contracts are set out in the Housing Grants (Construction and Regeneration) Act 1996, known as the Construction Act. A payment notice must comply in substance, form and intent with the requirements of the contract to which the application relates. There is a long history of case law dealing with the requirements for valid payment notices.

Now, for the first time, the TCC has provided guidance on the requirement in s110A(2)(a) of the Construction Act that a payment notice must state the sum the payer ‘considers’ to be due.

This decision is important as it identifies another basis on which parties claiming payment may seek to challenge the validity of payment notices.

Downs Road Development (the employer) engaged Laxmanbhai Construction (the contractor) to construct four blocks of flats in East London under an amended JCT Design and Build Contract.

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The employer operated an unusual approach to interim valuations on the project. Following the contractor’s applications for payment, the employer would generally send two payment notices within each payment cycle. The first payment notice, sent within the required timescale, would confirm a nominal sum (such as £nil or £1) as the amount due. A second payment notice, sent after the relevant deadline had expired, would state the true sum the employer considered due.

A dispute arose between the parties regarding the contractor’s February 2021 interim payment. The contractor disputed the employer’s valuation and commenced adjudication proceedings for the true value of its application on the basis the payment notice was invalid. The adjudicator awarded a payment to the contractor. When the employer did not pay the sum awarded, the contractor commenced enforcement proceedings in the TCC. One of the key issues before the TCC was the validity of the employer’s payment notice.

Part of the TCC’s decision was that a payment notice must specify ‘…the sum that the payer considers to be or have been due at the payment due date’. However, in this case the employer’s covering email to the February 2021 valuation stated that a further notice would be issued in due course. This indicated that the employer’s payment notice did not accurately state the sum which the employer considered to be due at the payment due date. Indeed, the covering email indicated a further notice would follow which would contain an entirely different figure. As a result, the payment notice did not satisfy the requirements of the Construction Act and was invalid.

Following the decision, it is more important than ever for employers to make a genuine attempt to value works at the time the relevant notices are served. Employers will have to show that any amount submitted in a payment or pay less notice was the sum they genuinely believed was due at the relevant date.

When negotiating construction contracts, parties must ensure they allow sufficient time for valuations to be prepared.

This decision is important as it identifies another basis on which parties claiming payment may seek to challenge the validity of payment notices. To avoid such risks, parties making or certifying payments must make a genuine attempt to value the works. Payment and pay less notices served without a genuine belief in the sum stated as due, or outside the permitted timescales, risk being challenged leaving the payer exposed to ‘smash and grab’ claims for full payment. If in doubt, take expert legal advice. q

Oil disputes: the ins and outs of hedging

by LIZ BOSSLEY, CEO of the Consilience Energy Advisory Group Ltd

[

WHILE THERE IS an oil industry there will be licence agreements, production sharing contracts, lifting agreements, transportation pipeline agreements, tanker charterparties and sales contracts. There will be financing deals and price risk management contracts, both on regulated exchanges and in the over-thecounter market.

Sadly, where there are contracts, disputes arise. When there are hedges involved and experts are wheeled out to give an opinion on oil contract disputes, certain questions recur in calculating damages.

For example: • Where there is an ‘available market’ and damages are calculated • based on the difference between the contract price and the market • price, which components of the oil price can be hedged?

• If the party doing the hedging is an oil producer, how much hedging • should it undertake to protect the revenue stream that it receives • after the terms of its production sharing contract are applied and • royalty, cost recovery, profit sharing and tax are taken into account?

• In particular, how much hedging should a producer undertake if its • hedges are taxed at a different rate from its oil production?

As anyone who trades in oil companies or oil assets could testify, the revenue stream from an oil field typically has been comparatively under-analysed compared with the extensive examination given to costs. After being asked the same questions on revenue and hedging on many occasions, Consilience has built the Revenue Analysis, Apportionment and Hedging (RAAH) software application. It gives quick and easy answers to the many ‘what if?’ questions that are asked by oil asset dealers, oil producers and oil cargo traders in their daily business and which also get asked during a dispute.

Based on the user’s own input assumptions, relevant to the asset in question, RAAH allows the user to analyse up to 20 fields over a 20-year period. It splits the oil price into what is hedgeable (the benchmark price) and what is not (the differential to the benchmark accounting for differences in quality, timing etc). It breaks down the total revenue stream into the portion that is paid as royalty in cash or in kind, government profit share and tax, and the portion that is retained by the company as cost recovery and the revenue from the sale of retained barrels.

RAAH constructs a hedge scaling factor that tells the producer how much hedging it needs to undertake to protect its retained revenue stream after royalty, profit share and tax. It considers any differences in the tax rate and other deductions that apply to the gross revenue stream from the physical oil and the tax rate that applies to hedge gains or losses. That is particularly relevant to oil field financing deals, where the lender may insist that the oil price base case assumption in the economic model for the asset is hedged. Unless hedges are scaled the producer can find itself over-hedged.

Using RAAH in the right circumstances cuts the amount of analytical time needed by the expert witness, thereby cutting costs.

Oil is not a dirty word

The wise words ‘The Stone Age didn’t end because we ran out of stone’ have been attributed to several people, but are probably most closely associated with Sheikh Yamani, the one-time Saudi oil minister of the 1970s and 1980s. The concern at that time was about ‘peak oil’: in other words, as the international economy grew and developed, it was feared that we would run out of the oil on which we were so reliant.

The good Sheikh was reassuring us that before we exhausted our fossil fuel supplies, human ingenuity would have found alternative energy sources. Also, our ability to retrieve more inaccessible supplies of oil economically would have evolved and improved before the known reserves ran out.

It is time to update Sheikh Yamani’s maxim: ‘The Stone Age didn’t end’ – full stop. We still use stone extensively – just ask any architect or builder. But we use it more sparingly and wisely. So will it be with oil and other fossil fuels. The oil industry is here to stay. q • Liz Bossley established the Consilience Energy Advisory Group Ltd in 1999. Her career spans more than 45 years in the international crude oil, refined product and freight markets, comprising trading, risk management and hedging, marketing and extensive experience of contract negotiations. She is a certified expert witness for oil and freight trading and logistics and has acted in more than 50 disputes.

Learn more about Liz Bossley at ceag.org/founding-partners and about RAAH at ceag.org/oil-field-hedging-software. www.yourexpertwitness.co.uk

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The Fire Safety Act 2021:

what your client needs to know [ FOLLOWING RECOMMENDATIONS made in the Hackitt

Review, the Fire Safety Act 2021 was passed to amend the existing Fire Safety Order 2005. The Act is designed to prevent fire disasters from occurring in the future by clarifying who is responsible for managing and reducing fire risks.

The Fire Safety Act 2021 applies to all premises other than those which have single occupancy. The designated Responsible Person – who is normally the leaseholder or duty-holder – must ensure a fire risk assessment is completed annually for the structure.

The definition of what is included in the term ‘structure’ now includes the external walls, including doors, windows and anything attached to the walls, as well as common parts of the building.

The Act makes enforcement action against the Responsible Person by the fire service and government more straightforward. Breaching fire safety regulations can have severe consequences for the property, the business and the Responsible Person.

The government has yet to set a date for the Fire Safety Act 2021 to be enforced. The Responsible Person must undertake the necessary measures to ensure they are ready for when the Act comes into force, which is likely to be early next year.

Whether your client has been affected by a suspected breach of fire safety regulations, or is the subject of an investigation for an alleged failure to comply, Strange, Strange and Gardner are there to help. They frequently report on cases where potential breaches of fire safety regulations are alleged to have taken place and where such violations may have resulted in or contributed towards damage or injury.

They will carry out an extensive review of a client’s case and investigate whether compliance was initially

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achieved, if the assessment was competent and to what extent the assessment adhered to the new scope.

They provide cost-effective reports promptly and their assistance is only a telephone call away. q

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

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

To get your website listed on this page just give us a call on 0161 710 3880 or email ian@dmmonline.co.uk Mr Kim Hakin FRCS FRCOphth Translations and Interpreting for the Legal Profession since 1997.

Specialists in Personal Injury and Clinical Negligence.

Consultant Ophthalmic Surgeon and Expert Witness on ophthalmological matters

www.abc-translations.co.uk

www.kimhakin.com

Mr 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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MEDICAL NOTES [IN AUTUMN, as the days began to shorten, it was the cue in many areas of the medical profession to take

stock of what the year has meant and where we are heading. In almost all cases that has meant reflecting on unprecendented challenges. Two reports published in September highlighted the impact the COVID-19 pandemic has had on respective areas of medical provision.

A special feature in the Annual Report of the National Joint Registry brought home the number of joint replacements that had not been carried out as resources were diverted. The authors also offered an insight into the extra resources that will be needed to make up that deficit ­– even without taking into account future waves of COVID. • Similarly, the numbers of people awaiting echocardiograms has soared in the past 12 months or so, according to figures from the British Heart Foundation. Again, the COVID pandemic has led to resources being diverted away from day-to-day activity. In the past few months great efforts have been put in to make up the deficit, but with waiting lists already too long, the inevitable toll will follow, experts predict.

• Even more recently, the results of ‘crowding’ in Emergency Departments have been revealed and they make grim reading. According to the Royal College of Emergency Medicine, more than four-and-a-half thousand people died after waiting more that 12 hours in EDs in 2020-21, and the figure for this year could be even worse: October and September this year saw the highest numbers of people waiting 12 hours or more on record.

With concerns around a new variant of the virus, this winter could be a long one.

• Amid all the chaos and overstretching of resources, the GMC is attempting to put together a revised version of its core guidance for medical professionals, Good Medical Practice. The last revision took place in 2013 and the intervening years have seen many changes, not least the impending bringing under the GMC’s aegis of physician associates and anaesthesia associates.

The advisory forum has been announced, with Professor Emma Cave of Durham University as its chair. Part of the work will be a consultation exercise next spring. We can only wish Professor Cave and her team well in their endeavours.

• The picture for medical experts is not all bad, however. NHS Resolution’s Annual Report painted an improving picture in terms of both the number of claims against medical professionals and the provision it has had to make for the resolution of those claims. One of the major successes has been the drive to resolve claims out of the courts. Three quarters of claims were resolved without recourse to court action, the report revealed.

• Nevertheless, the amount being paid in compensation is still eyewatering, according to one of the main indemnity bodies for doctors. The Medical Defence Union has equated the annual bill to the extra tax that would be paid by 8.7 million people in the plans for National Insurance.

The BMA has its own resources for doctors to help them avoid litigation in the form of a suite of books on medical ethics.

• A book with a more widely spread appeal is due to be published in the coming year, celebrating and helping to fund research into hand surgery. The book will tell the story of a cohort of ‘miracle patients’ whose lives have been transformed by the work of hand surgeons. As one of them pointed out, we use our hands for almost every activity, and the surgeons’ use of their hands has helped them to reclaim their lives. q

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GMC begins review of its core guidance [THE GENERAL MEDICAL COUNCIL (GMC) has

embarked on a review of its core guidance, Good medical practice. In September it announced the members of an advisory forum that will help steer the review, with Professor Emma Cave as its chair.

The advisory forum will act as a sounding board for key decisions and developments, as the GMC looks to make changes to its overarching guidance for medical professionals practising in the UK. Its 12 members bring with them a wealth of expertise in areas such as medical ethics, patient care, multi-disciplinary working, and equality and diversity. They will provide advice to the GMC throughout the review.

Good medical practice, last updated in 2013, outlines the professional values, knowledge and behaviours expected of doctors working in the UK. The GMC will review every element of the guidance to assess where changes and updates are required. It will also consider how Good medical practice will apply to physician associates and anaesthesia associates when they come into its regulation in future.

A consultation, currently planned for next spring, will seek input from healthcare professionals and patient representatives.

Professor Cave, a professor of healthcare law at Durham University, commented: “Good medical practice is the bedrock that helps guide ethical decision-making, as well as the building and maintaining of trust and high standards.

Much has changed in the years since it was last updated, and so this is an important time for a review. I am delighted to chair the forum that will act as a critical friend to the GMC throughout the process.”

Professor Colin Melville, the GMC’s medical director and director of education and standards, added: “The healthcare landscape has changed dramatically in recent years and will continue to do so in the decade ahead. It’s vital we update our guidance so doctors and other medical professionals can face the challenges of future practice with confidence.

“The advisory forum will help us to do that. Its members will provide us with insight, expertise and a range of knowledge and experience that will be invaluable as we proceed with this complex piece of work.” q

CQC reveals accidental radiation exposure figures [

IN NOVEMBER the Care Quality Commission (CQC) published its latest annual report on work to enforce the Ionising Radiation (Medical Exposure) Regulations in England. The regulations aim to protect people from the dangers of being accidentally or unintentionally exposed to ionising radiation in a healthcare setting.

A small proportion of errors happen when healthcare providers are using ionising radiation when diagnosing or treating people. The CQC’s work focuses on finding out the causes of errors so it can help providers to learn from them and improve their safety.

The report also provides data on the number and type of statutory notifications of errors. The CQC found less activity across all types of imaging in 2020/21 because of the impact of the coronavirus pandemic. Nevertheless, over 34 million diagnostic imaging examinations were carried out on NHS patients in England, 23 million of which used ionising radiation.

During the year the CQC received 499 notifications of errors. Of all the notifications received, 329 (66%) were from diagnostic radiology departments, 35 (7%) were from nuclear medicine and 135 (27%) were from radiotherapy departments.

A key source of errors continued to be when referrers requested imaging for the wrong patient. CQC also found that inadequate checks about the patient’s identity or mistakes by the operator were causes of errors. They stressed that, although notifications relate to incidents where there is risk of harm, the majority do not result in harm to patients.

The CQC paused its routine scheduled inspections during the pandemic and focused resources on monitoring and inspecting in response to risk and concerns. In the year 2020/21, the team only carried out 18 inspections.

For some of these inspections, they made recommendations for improvement or took enforcement action. Areas identified for improvement included the need to ensure that procedures, protocols and guidance for staff were up-to-date and effective, and to strengthen training and supervision arrangements. In some cases, they found insufficient support for staff from medical physics experts.

Inspectors also saw how COVID-19 had exacerbated pre-existing staffing problems.

Staff shortages and recruitment difficulties were affecting the ability of departments to maintain their regulatory compliance.

The report includes practical actions for IR(ME)R employers to improve compliance with the regulations. It also shares examples of the steps some providers have taken in response to errors to improve quality and safety. q

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Report quantifies excess deaths due to Emergency Department ‘crowding’ [A REPORT by the Royal College

of Emergency Medicine has found that at least 4,519 patients have died as a result of crowding and 12-hour stays in Emergency Departments in England in the year 2020-2021.

The new report, Crowding and its Consequences, investigates the extent of harm that crowding causes and applies NHS England’s own findings from the Getting It Right First Time (GIRFT) programme, which found that one in 67 patients staying in the Emergency Department for 12 hours come to excess harm.

Dr Adrian Boyle, vice president of the Royal College of Emergency Medicine, said: “To say this figure is shocking is an understatement.

Quite simply, crowding kills. For many years we have issued warnings about the harm that dangerous crowding causes, but now we can see the number of excess deaths that have occurred as a result. This will not surprise any member or fellow of the Royal College.

“October 2021 saw an unimaginable 7,059 12-hour stays from decision to admit, the highest number ever recorded and 40% higher than September 2021, which was the previous highest on record. The number of 12-hour stays has risen drastically for six months and is very likely to rise again in coming months. We now know that at least one in 67 of these patients are coming to avoidable harm. It is appalling.”

Commenting on the report, the BMA’s emergency medicine lead Dr Denise Langhor said: “These devastating figures in the report are not

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the fault of emergency departments or their staff, who are regularly going above and beyond to provide the best possible care for their patients. They are a result of a severe lack of capacity across health and social care coupled with a lack of doctors and other vital staff. The doctors we do have are exhausted and are being left with little option but to reduce their hours or take early retirement because of punitive pensions taxation rules. We can’t go on like this.

“We call on the government to put together a workable plan to tackle these problems starting urgently with how we are to retain our workforce. We have an immediate problem because we just don’t have the required 13 years to wait for new consultants to be trained, so the focus must be on keeping highly-skilled and experienced consultants in their jobs so that as many patients as possible can access the care they need.

“The situation is unacceptable, unsustainable and unsafe for patients and staff. Political and health leaders must realise that if performance continues to fall this winter, more and more patients will come to avoidable harm in the Emergency Department. Staff will face moral injury and the urgent and emergency care system will be deep into the worst crisis it has faced. We continue to urge the Secretary of State to meet with us to discuss patient safety and the unprecedented pressures facing the urgent and emergency care system.” q

Failings highlight need for training for medical expert witnesses [THE SUPREME COURT’S decision in 2011 to abolish expert

witnesses’ immunity from suit resulted in instructing parties being far more careful when assessing the suitability of an expert for a particular case. The fact that professionals could now be sued in respect of their actions as expert witnesses further highlighted the importance of undertaking formal expert witness training if acting in that capacity.

In its guidance for clinicians undertaking expert witness work, the Academy of Medical Royal Colleges said: “Healthcare professionals who act as expert witnesses should undertake specific training for being an expert witness and the expectations and responsibilities of this role. Training should be kept up to date with appropriate refresher courses or other activities.”

The guidance was issued in response to the repoprt of the Williams inquiry into Gross negligence manslaughter in healthcare.

In the report, Professor Norman Williams says: “It is also vital that experts should have an appropriate understanding of their role in the legal process and of their responsibility to provide objective and unbiased opinion in an investigation or to the court. The panel believes that training should be improved in order to better prepare healthcare professionals who provide an expert opinion or appear as an expert witness.

“All professionals require training to practise in the fields in which they operate and knowledge of the standards needed to do so. It is a notable omission that those putting themselves forward as suitable to provide expert evidence do not need to undergo any training or accreditation in that role.”

The academy’s chair, Professor Carrie MacEwen, said of the guidance: “Being an expert witness is an important and valuable role. It is essential that clinicians acting in these roles are properly trained, fully up to date and act with complete integrity.

“I believe this guidance will help ensure and maintain the required standards as sought by Sir Norman Williams’s review.”

The importance of adequate training in the legal aspects of the expert witness’s work was highlighted by leading trainers Bond Solon following the ruling by a judge that discredited expert Dr Chris Mercier must pay £50,000 in costs for ‘flagrant and reckless disregard of his duty to the court’ and giving evidence that was ‘grossly unhelpful and wholly unreliable’.

Dr Mercier had produced a report and gave evidence in support

of a negligence claim against a maxillofacial surgeon. At the end of his evidence, however, the claimant withdrew her claim because Dr Mercier had had to concede under cross examination that he had never trained or practised as a maxillofacial surgeon. He also conceded that the defendant’s expert witness – a consultant maxillofacial surgeon – was better placed to comment on the standards to be met in practice, that he had had no experience in general anaesthetic extraction in over 20 years and that he did not work in a hospital setting.

The judge, Ms Recorder Hudson, was clear that he should never have prepared a report on subject matter in which he had no expertise. She ordered him to pay the defendant's costs because the claim would never have been brought but for his report – the claim had had no chance of success.

Bond Solon pointed to its web-based learning package, Introduction to the Civil Procedure Rules, which takes the expert through their duty to the court and its application at every stage of the court process. It is an essential reminder for the experienced expert witness as well as introduction for those who are new to the work.

As they point out: “Better to be trained than face an order to pay £50,000!” q

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NHS redress scheme sees fall in claims and provision [THE YEAR 2020/21 saw a fall in both

the number of claims against the NHS and the amount of provision for resolving claims.

That was one of the conclusions of the Annual Report of NHS Resolution, published in July.

According to a release issued on the report’s publication: “The year saw a significant drop in litigation, in line with our strategy to keep cases out of court but also due to a welcome improvement in co-operation between the parties. Three quarters of claims resolved in the year without court proceedings with processes such as mediation moving onto digital platforms,

reducing the additional distress and cost which is associated with litigation.”

As a result of the lower than expected number of new claims and a reduction in expected claims inflation in the future, NHS Resolution was able to reduce its provision for present and future claims from £84.1bn to £82.8bn.

A caveat of the report was that claims relating to COVID-19 are ‘still very much an unknown, and the true impact of the pandemic on future claims patterns remains to be seen’.

To ensure that indemnity did not present a barrier to pandemic healthcare arrangements,

NHS Resolution launched the Clinical Negligence Scheme for Coronavirus in April 2020 and, later in the year, the Coronavirus Temporary Indemnity Scheme as different requirements, such as indemnity cover for designated care settings, emerged.

The statement concluded: “In a challenging time, the report provides an account of an organisation performing well in all of its business areas whilst continuing to drive forward an ambitious strategy and, like many, striving to meet the particular challenges that the pandemic presented.” q

BMA books offer guidance on medico-legal issues [THE British Medical Association (BMA) publishes a number

of books on a range of medico-legal and ethical issues which are available for purchase.

Now in its third edition, Medical Ethics Today is the BMA’s handbook on ethics and law. It provides a practical and easy-to-use guide to the ethical and legal issues in medicine faced by all healthcare professionals.

Everyday Medical Ethics and Law pulls out the practical advice on

Clinical negligence compensation bill could swallow up tax rise

the everyday ethical dilemmas found in Medical Ethics Today and presents it in a handy paperback reference guide. It summarises best practice standards, legal benchmarks and advice from expert organisations on a range of areas, such as the doctor-patient relationship, consent and capacity, and confidentiality.

Withholding and withdrawing life-prolonging treatment: guidance for decision making provides clear guidance and information for doctors on one of the most controversial and emotive issues in medicine: withholding and withdrawing life-prolonging medical treatment. q

[IN EVIDENCE to the Health and Social Care Committee inquiry into

NHS litigation reform, the Medical Defence Union (MDU) put the £2.2bn bill for NHS clinical negligence payments in England into context.

The indemnity provider predicted that the National Insurance tax levy on 8.7m people earning £30,000 and paying an extra £255 a year in tax would be needed to fund the amounts paid out in claims this year alone – money which could otherwise be spent on frontline patient care.

Dr Michael Devlin, MDU head of professional standards and liaison, said: “The MDU has been sounding the alarm about the cost of compensation claims against the NHS for years, so we are relieved that the Health and Social Care Committee is examining the case for NHS litigation reform.

“Amounts being paid out in compensation annually are spiralling, increasing nearly 50% in the last five years from £1.48 billion to £2.2 billion last year. With the NHS facing a funding crisis, we simply cannot sit by any longer and ignore numbers like £2.2bn. The government must grasp the nettle and reform the system surrounding clinical negligence, so that it is fairer and mirrors society's ability to pay.

“Reforms to the system for compensating patients could make a significant difference. One example is the need to ensure payments for long-term care are based on the cost of NHS care rather than private care, as is currently the case.

“Clinical negligence claims are not an indicator of poor medical standards. Nevertheless, legal reforms must go hand-in-hand with improvements in patient safety. A learning culture in which incidents are thoroughly investigated and lessons learned and shared must be fostered.” q www.yourexpertwitness.co.uk

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Noise-induced hearing loss:

claims are on the increase [FOR MANY PEOPLE noise is part and parcel of

their workplace. Everywhere there is noise – traffic noise, the noise of machinery, even people talking loudly or shouting. There is a limit to the amount of noise a person’s hearing can tolerate. Where exposure to noise surpasses that limit there is a real possibility of hearing loss.

Noise-induced hearing loss (NIHL) is a hearing impairement caused by exposure to loud noise – either persistent noise such as from machinery at work or a single, sudden extremely loud noise such as an explosion or gunshot. Often the condition comes on gradually, sometimes almost imperceptively. In other cases it is sudden. In all cases it is permanent: once the hearing is gone it will not come back.

Forensic consultants Hawkins describe the condition thus: “Noiseinduced hearing loss is irreversible and may significantly impact on the lives of those who have suffered this occupational injury. Symptoms not only include a loss of hearing acuity, but also a distortion of speech and chronic tinnitus.”

While NIHL can occur in many settings – it has been estimated that 15% of young people are exposed to sufficient noise at concerts and sporting events, or from personal listening devices and the like, to cause the condition – where it is caused by noise at work there can be a case for redress.

The legislation governing levels of noise in the workplace is the Control of Noise at Work Regulations 2005, which came into force on 6 April 2006 for all industry sectors except for the music and entertainment sectors, which were given a two-year period to implement the regulations because of the nature of those industries – ie to deliberately generate sound.

The Control of Noise at Work Regulations 2005 replaced the Noise at Work Regulations 1989.

According to the Health and Safety Executive: “The aim of the Noise Regulations is to ensure that workers’ hearing is protected from excessive noise at their place of work, which could cause them to lose their hearing and/or to suffer from tinnitus.

“The level at which employers must provide hearing protection and hearing protection zones is 85 dB(A) (daily or weekly average exposure) and the level at which employers must assess the risk to workers’ health and provide them with information and training is 80 dB(A). There is also an exposure limit value of 87 dB(A), taking account of any reduction in exposure provided by hearing protection, above which workers must not be exposed.”

The full text of the Control of Noise at Work Regulations 2005 and of the Noise at Work Regulations 1989 can be viewed online at the HSE website, from where guidance documents Noise at work: A brief guide to controlling the risks and Controlling Noise at Work can be dowloaded.

An updated edition of Controlling Noise at Work has been published in 2021, aimed at employers and other dutyholders. It gives detailed advice on assessing risks, practical noise control, how to select and use hearing protection, what to consider when buying and hiring equipment and how to develop health surveillance procedures.

It has also been updated in keeping with changes to related legislation, technical advances and experience.

Claims for occupational NIHL

Claims for occupational NIHL have increased markedly over the past few years, resulting in more workers receiving compensation each year.

Part of the Control of Noise at Work Regulations is a requirement that, in all workplaces where noise levels can potetially exceed the permitted limits, there must be assessment of noise levels.

Again, Hawkins list investigations that may be undertaken when a claim is made for NIHL: • Assessment of the noise environment within the workplace in • question to determine the likelihood of a risk to health and safety • Review of previous noise assessments and identifying shortcomings • or inconsistencies • Investigation of audiometric results of the claimant alongside • medical and employment histories • Identification of comorbid exposure to other ototoxic substances • within the workplace The best way to avoid a claim for NIHL is, of course, to take steps to ensure compliance with the regulations.

An acoustic consultant such as Hawkins will be able to undertake a full occupational noise study, identifying potential risks.

Get advice

The professional organisation for acoustic consultancies is the Association of Noise Concultants, which includes in its membership consultancies that can advise employers on their noise compliance as well as implement assessment and monitoring policies.

A list of experts who can advise on NIHL claims is available from the directory of experts on this publication’s website. q www.yourexpertwitness.co.uk

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What can a lost tooth cost?

Dr RAJ KUMAR looks at some issues of concern to general dental practitioners

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ACCORDING TO EMINENT EXPERT in teeth can be damaged or lost from trauma or geriatric dentistry Poul Holm-Pedersen: “If a road traffic accidents. patient is free from periodontal disease and Root resorption of teeth that have caries, then the teeth can be for life.” undergone fixed orthodontic treatment can However, unfortunately many patients also reduce their life expectancy, as William suffer from periodontal disease and lose teeth R Proffitt found. prematurely. Periodontal disease is a silent The loss of a tooth usually leads to bone loss disease, as many patients do not recognise as well as cosmetic and aesthetic challenges. anything is wrong until the teeth have lost If a patient wants a like-for-like replacement, their supporting bone and are mobile. It is then a fixed dental implant and crown are the usually then that the patient consults with ideal solution. Implants avoid the unnecessary a dentist and finds out that they have a trimming down of natural teeth for conventional progressive disease. crown and bridgework – which would reduce At each examination the dentist is required their life-expectancy. to carry out a basic periodontal examination.

Implants are usually made of sterile Many do; but, equally, the Faculty of General titanium, which is placed into the bone in Dental Practitioners has found that many do a sterile environment. Within three to four not. Radiographs (X-rays) are taken every months the bone will have successfully two to three years to assess for caries or integrated with the titanium surface and bone levels around teeth. Patients may have the crown or bridge can be attached. The Internal root resorption after car accident attended for many years and not know they average cost of an implant crown placed by a and fractured tooth had bone loss associated with periodontitis. specialist or oral surgeon is £3,000.

If the disease goes unchecked by the dentist, then the patient has a The medical history of the patient must be considered, as it is right to make a claim for dental clinical negligence. known that immunocompromised, diabetic and smoker patients have Caries is sometimes different, in that a patient may suffer pain or a reduced success rate with implants. toothache and the symptoms force the patient to attend the clinic. In most cases the tooth can be saved. In a small percentage of cases, How long should an implant last?

Implants can suffer from infection of the supporting bone, known as peri-implantitis. Bone loss and implant failure leads to a larger defect of the supporting tissues. According to published papers, most studies cite implant success rates of up to 10-15 years. Some patients will suffer periimplantitis, but not lose the implant; others, however, will lose the implant completely.

Again, HolmPedersen quotes that an implant crown may need to be replaced every 20 years due to peri-implantitis.

The replacement of a failing implant would require added bone grafting to restore the supporting bone and soft tissue volume.

Bone grafting is a complex procedure and is known to fail.

The average fee for bone grafting and a Implant crowns to replace central incisors second implant crown can be £4,000-£5,000.

The replacement of a failed implant within 20 years would require a more complex procedure and added costs.

It is not uncommon in medico-legal reports to quote for two or three cycles of implant replacement during a patient’s lifetime. Orthodontic medical negligence cases may therefore run to £100,000-£300,000.

In summary, once a tooth is lost it becomes a very expensive and complex procedure to have a like-for-like replacement. q

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Pandemic drives increase in antibiotic prescribing by dentists [THE BRITISH DENTAL ASSOCIATION

has warned that on-going difficulties in accessing dental services risk fuelling the parallel health crisis of antibiotic resistance, as new data from the UK Health Security Agency revealed a surge in prescriptions in the dental sector.

While all other healthcare settings recorded further drops in antibiotic prescribing, the English surveillance programme for antimicrobial utilisation and resistance (ESPAUR) report showed that dentistry saw an increase of almost a fifth in 2020 – the only practice area to do so. In addition, patient volumes fell by more than half during the year.

COVID restrictions radically reduced patient numbers, and staff were advised to adopt an ‘AAA’ model during the first lockdown: antibiotics, analgesics or advice.

Antibiotic prescribing in NHS dental settings had been steadily decreasing from 2016 to 2019 – from 0.16 to 0.13 items per 1,000 inhabitants per day. That decline was interrupted in 2020, with an increase of 17.6% reported – back up to 0.15 items per 1,000 inhabitants per day.

Dentist leaders have urged the government to do more to increase access sustainably and ensure patients – particularly urgent cases – have the time for operative interventions, ensuring they are not offered antibiotics as a ‘placeholder’.

A failure to address the problem of antibiotic resistance could result in ten million deaths every year globally by 2050. As the pandemic continues and into the future, the BDA has stressed it is essential that dentists are supported to once again reduce the rate of antibiotics prescribed.

BDA chair Eddie Crouch said: “Antimicrobial resistance poses an even greater threat

to human health than COVID. Sadly, the pandemic has wiped out years of progress in bringing down antibiotic use in dentistry.

“Placeholder prescriptions are now filling deficits in access and time, which the government has chosen not to factor in.

Ministers have a responsibility to help dentists turn the page.”

Dental teams in both general practice and hospital settings have been urged to re-start auditing their antibiotic prescribing against the recently updated national guidelines and prescribe antibiotics only when indicated according to those guidelines.

The BDA’s warning came during the international Antimicrobial Awareness Week, when it joined with the Association of Clinical Oral Microbiologists, the College of General Dentistry and other health organisations to highlight the message that ‘Antibiotics do not cure toothache’.

Prudent prescribing of antimicrobials can slow down the development of antimicrobial resistance and as healthcare providers dentists have a vital role to play, the BDA stressed. q

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Government must address needs of children with sight loss, commission says [A NEW REPORT, Children and young people with vision impairment: The case for transforming support and services in England, has been published by the Creating the Future Commission set up by charity Guide Dogs.

Guide Dogs established the commission – which is made up of young people, parents, carers and experts in both policy and practice – to come up with a set of recommendations that would help transform the experiences and outcomes of children and young people with a vision impairment in England. Of the 34,000 children and young people in England growing up with a vision impairment, 24,000 of them are under 18. Around 20% of children and young people with a vision impairment have additional special educational needs and/or disabilities and 30% have complex needs.

Private cataract treatment is a double-edged sword [THE Royal College of Ophthalmologists (RCOphth) has issued a

statement defining its position on the provision of NHS cataract surgery and training by the independent sector. The document, Three Steps to sustainable patient care: RCOphth view on the independent sector and the delivery of NHS cataract surgery, describes the growing role played by independent sector providers (ISPs) in delivering cataract surgery in England and outlines how the RCOphth will work with ISPs and others to ensure the delivery of a sustainable comprehensive ophthalmology service with a well-trained workforce.

According to the RCOphth, there has been a huge shift over the past five years in what type of provider delivers NHS-funded cataract procedures. In 2016 just 11% of NHS cataract procedures in England were delivered by ISPs, but by April 2021 there was almost a 50/50 split, with 46% by ISPs and 54% by NHS trusts and treatment centres.

An important part of this changing picture is that NHS ophthalmology units, despite developing innovative solutions, have struggled to provide capacity for cataract procedures because of a lack of investment in appropriate infrastructure and workforce at the national and local level.

The RCOphth recognises that ISPs have helped to increase much-needed capacity to deliver patient care, particularly during the pandemic. However, that growing role has also presented new challenges that must be addressed to ensure a well-trained workforce and a sustainable comprehensive ophthalmology service to meet the growing patient demand.

RCOphth president Professor Bernie Chang explained: “The landscape for how NHS-funded cataract surgery is delivered in England has shifted dramatically. That has helped to increase the capacity to deliver timely patient care, especially given the under-resourcing of many NHS eye units and the disruption to services caused by the pandemic.

“But that shift has not come without difficulties. Ophthalmologists in training are struggling to get the access to surgical sessions they need to become experienced surgeons. Patients with more complex needs can only be managed by the NHS ophthalmology service, further complicating patient access to care. The financial viability of NHS eye care units to deliver ophthalmology services and comprehensive out-of-hours care is also being threatened. It is crucial that we all now take stock, whether we work in the traditional NHS setting or the private sector, and together work towards a sustainable ophthalmology service into the future.” q

The report details some of the significant findings about the need for change and makes a number of recommendations. It says a universal model pathway should be agreed to secure consistent delivery, access and understanding of the support available for children and young people with vision impairment. The commission has created a model pathway that it believes should be endorsed.

Professor Rachel Pilling is a member of the commission. Together with fellow paediatric ophthalmologists she is leading on the development of a national clinical assessment protocol for cerebral visual impairment for the Royal College of Ophthalmologists.

She explained: “The commission has identified the major barriers to visually impaired children and young people fulfilling their potential, and how we as eye health professionals can play a role to improve this. It is important that each paediatric ophthalmologist builds a relationship with their local visual impairment service to understand how referral might help the child, the criteria for referral and what information would be most useful to aid swift support.

“Ophthalmologists are unlikely to have in depth knowledge of the local resources and requirements within education and habilitation for a child with visual impairment. The development of a pathway to which they can direct parents and carers, alongside the creation of Family Support Officers is welcomed.

“One specific area highlighted is the different levels of support available to children with cerebral (as opposed to ocular) visual impairment, which is an emerging area of practice and evidence-based interventions are under investigation. The diagnosis of cerebral visual impairment, initial explanation and signposting is an essential first step in addressing this.” q

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More women take up COVID vaccination in pregnancy [

DATA PUBLISHED by the UK Health Security Agency shows that, in August, 22% of women who gave birth were vaccinated against COVID. That figure has been steadily increasing since April, when the Joint Committee on Vaccination and Immunisation advised all pregnant women should be offered two vaccine doses at the same time as the rest of the population.

The figures also show uptake in the most deprived areas and for those from certain ethnic minority communities is lower than for

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other areas or ethnicities, but follows a similar pattern to the uptake figures for those groups in the general population. That means 5.5% of black women and 7.8% of women from the most deprived areas were being vaccinated.

Of those pregnant women in hospital with symptomatic COVID-19, 98% are unvaccinated. Around one in five women who are hospitalised with the virus need to be delivered preterm to help them recover and one in five of their babies need care in the neonatal unit.

The Royal College of Obstetricians and Gynaecologists strongly recommends pregnant women to get vaccinated against COVID-19, as the best way to protect themselves and their babies from the virus.

Its president Dr Edward Morris said: “This important report is the first detailed analysis of COVID-19 vaccine coverage in women giving birth in the UK and provides further reassuring evidence that vaccinated women have no increased risk of having a stillbirth or low birthweight baby.

“The evidence reinforces our strong recommendation that getting vaccinated before or during pregnancy is the best way to protect against the known harms of developing COVID-19 while pregnant, including admission to intensive care and premature birth.

“We are concerned that women of black ethnicity and those living in the most deprived areas in England were least likely to have been vaccinated before they gave birth. Efforts must be strengthened to support and encourage these groups – who are already at the highest risk of adverse pregnancy outcomes – to accept the offer of vaccination.” q

Extra funding will help avoid brain injury in babies [ON 5 NOVEMBER Patient Safety Minister

Maria Caulfield announced a further £3m in funding to improve the safety of the women and babies they care for. The funding will support the Royal College of Obstetricians and Gynaecologists (RCOG), Royal College of Midwives (RCM) and The Healthcare Improvement Studies (THIS) Institute to deliver the second phase of a programme to reduce brain injuries at birth, which can have a devastating impact on babies and their families.

Following the announcement, the RCOG – in partnership with the RCM and THIS Institute – will develop a national programme to roll out tools and training products. It will also seek to address workplace culture factors, such as ensuring midwives and obstetricians are working together to deliver safe care.

Announcing the funding, Ms Caulfield said: “I want every mother and baby to get the best possible care and start to life and am committed to supporting our dedicated NHS staff to make positive changes, backed by over £5m of investment. The second phase of this vital programme will help us improve maternity care and prevent mothers and babies from suffering the trauma of a brain injury during birth.”

The RCOG welcomed the new funding.

Its president Dr Edward Morris commented: “We are delighted that funding has been awarded to our collaboration to deliver phase two of the Avoiding Brain Injury in Childbirth programme. By drawing on expertise from across the health sector, and listening to the experiences of women and their families, we are developing tools to support maternity units in providing the best possible care to pregnant women and their babies, and establish clear processes for effective foetal monitoring.

“Any event of avoidable brain injury is tragic, for the newborn, for the family, and for the midwives and obstetricians involved.

All maternity staff want to ensure that both mother and baby have the best possible outcomes. The development of these approaches to monitor babies is key to supporting maternity staff to safely deliver babies.

“We are grateful to all the women and healthcare professionals who have been involved with the design of this national programme. This collaborative approach has provided us with a robust base on which to build as the programme enters the second stage.” q

Report highlights on-going inequalities in maternal death rates [ON 11 NOVEMBER the latest MBRRACE-UK report was published,

looking at maternal deaths and morbidity between 2017 and 2019 in the UK. The report deals with the period from 2017-19 when 191 women died during or up to six weeks after the end of pregnancy from causes associated with their pregnancy. The total number of women giving birth in the UK in that period was 2,173,810.

Heart disease remains the leading cause of death, followed by epilepsy and stroke. Sepsis, and thrombosis and blood clots are the third and fourth most common causes of maternal death during or up to six weeks after the end of pregnancy. Maternal suicide remains the leading direct, pregnancy-related, cause of death over the first year after pregnancy.

A stand-out result in the report is continuing differences in mortality rates between women from deprived and affluent areas, women of different ages and women from different ethnic groups. Black women are four times more likely to die than women from white groups, while women from Asian and mixed ethnic backgrounds are almost twice as likely to die in pregnancy compared to white women. Women living in the most deprived areas are also twice as likely to die than those who live in the most affluent areas.

Responding to the report, the Royal College of Midwives’ director for professional midwifery Dr Mary Ross-Davie said: “Pregnancy and childbirth in the UK continue to be a safe experience for most women.

However, we remain deeply concerned that mortality rates among black women are four times higher than white women and twice as high if you are Asian or from another minority ethnic background. All those involved in commissioning and delivering maternity services must work together to address this unacceptable disparity.

“Also, it’s crucial that clinicians are aware of this increased risk and have a low threshold for assessment or admission of black, Asian

and minority ethnic women to ensure they receive the appropriate assessment and specialist care. Tragically, this report highlights maternal suicides, where improved care might have affected the outcome. Highquality perinatal mental health services are essential to maternity care and every trust or board should have a specialist service that includes a specialist perinatal mental health midwife.

“The RCM has long called for specialist perinatal mental health provision in all trusts and health boards and this report highlights once more the urgent need to improve this provision. In many parts of the UK these midwife roles do not exist or are very limited. This means many women who need additional support may not receive the right care.” q

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Nerve injuries after total hip replacement

By Mr NIKHIL SHAH, consultant trauma and orthopaedic surgeon at Wrightington Hospital.

Total hip replacements are very successful operations and have been shown to provide good pain relief from hip arthritis; however, like other successful surgeries they can be associated with some risks and complications. This brief write-up discusses some of the common nerve problems and the reasons why they might happen.

[

ONE OF THE complications that can happen is injury to the nerves around the hip during surgery. Not only can that cause clinical problems for the patient, such as neuropathic pain, loss of power and muscle weakness or loss of feeling, but it can also be a source of allegations of negligence in performing the surgery against the treating surgeon.

The actual incidence of nerve injuries after primary total hip replacement is low and is generally stated to be around 1% or less in most studies. There are two important nerves around the hip that commonly figure in nerve injury related issues. They are the sciatic nerve and the femoral nerve.

The sciatic nerve is located towards the back of the hip (posterior) and the femoral nerve on the front of the hip (anterior). The role of the sciatic nerve is to provide sensory and motor function to the leg and foot. The peroneal division of the sciatic nerve is important in enabling the patient to ‘dorsiflex’ the ankle and toes – that is, move the ankle and toes backwards towards the head – and is the more commonly injured component. When that is injured, the patient may develop a ‘foot drop’: in other words, the patient cannot extend or dorsiflex the ankle and toes. There can also be loss of feeling in and around the foot and sometimes quite severe nerve pain.

The femoral nerve, on the other hand, supplies the quadriceps muscle and injury to that nerve can lead to muscle weakness in extending or straightening the knee. Both can lead to problems in gait.

There are certain patient-related factors which increase their vulnerability to nerve injury. They include high BMI (obesity), female gender, previous hip surgery, presence of previous metalwork around the surgical area and certain hip conditions such as total hip replacement for hip dysplasia. The surgical approach may occasionally determine which nerve is more at risk.

It is vital that the risk is discussed with the patient before surgery during the counselling and consenting process, to ensure that the patient is well educated and makes an informed decision.

Iatrogenic injury can occur to the nerve due to retraction from surgical instruments, direct injury from a knife, drill or saw, thermal injury from the diathermy or cement polymerisation or pressure-related ischaemia of the nerve. Other causes also include inadvertent lengthening of the operated leg beyond the tolerances of a particular nerve. Post-operative nerve problems can occur due to compression from a haematoma.

However, the commonest reason for nerve injury still appears to be ‘idiopathic’ – or unknown.

It is important to appreciate the causes of nerve injury and take all precautions in performing the surgery to protect the nerve. Some surgeons prefer to feel the nerve and know where its position is, while others visualise the nerve to see where it is lying. Utmost care must be exerted to protect the nerve throughout the surgery, especially when using retraction or sharp instruments in close proximity. There are welldescribed surgical techniques to protect the nerve that surgeons are familiar with.

Unfortunately, however, nerve injuries can occur even when the surgeon takes all the necessary precautions to avoid the problem.

Sustaining a nerve injury during total hip replacement is not synonymous with negligence. It is recognised that it can also be a non-negligent complication that may occur even when the surgeon has taken all preventive measures to avoid an injury.

It is important after surgery to check for nerve function as soon as the patient’s anaesthesia wears off. The surgeon needs to be familiar with common treatable causes of nerve injury such as compression from a haematoma, which may in some cases need repeat surgery. It may be necessary to obtain certain tests after surgery to check if a treatable cause can be identified. An early second opinion from a colleague is usually very helpful.

Special imaging scans may be needed. An opinion may also be obtained from a specialist nerve surgeon, either locally or regionally, to obtain advice about further management which may include reexploration and sometimes repair of the nerve.

It can be a distressing time for the patient and it is important to be open and honest to the patient if a complication has occurred. A pain management specialist may need to be involved to help with the neuropathic pain. A foot drop is usually managed with a foot drop splint and physiotherapy to avoid muscle tendon contractures. Nerve conduction studies and electro-myography may be quite helpful in determining the type of injury and the prognosis.

The prognosis for recovery depends upon whether the injury is incomplete or complete. Incomplete injuries may slowly demonstrate a reasonably good or sometimes a complete return to function; but that often takes 1-2 years before the recovery is complete or even longer in some cases. q www.yourexpertwitness.co.uk

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Report features findings on COVID-19 effect on joint replacements [THE 2021 Annual Report of the National Joint Registry (NJR)

– its 18th – was presented at the Annual Congress of the British Orthopaedic Association, which took place from 21-24 September.

The report included a special feature on the effects of COVID-19 on joint surgery. And during the NJR’s presentation session at the congress, the authors of the feature addressed the impact of COVID-19 on last year’s surgical procedure volumes, alongside a moving presentation on the patient perspective of what it is like to be on a long waiting list, especially when combined with the on-going uncertainty of treatment timelines.

The study was supported by the NIHR Biomedical Research Centre at University Hospitals Bristol and Weston NHS Foundation Trust, the University of Bristol, the NIHR Biomedical Research Centre at Oxford University Hospitals NHS Foundation Trust and the University of Oxford.

The research found that there was a ‘substantial deficit’ in joint replacement procedures carried out in 2020 compared to 2019. In all there were 106,922 (48.8%) fewer procedures performed in England, Wales and Northern Ireland – comprising 45,116 (44%) fewer hip replacements, 57,115 (52%) fewer knee replacements, 3,878 (50%) fewer shoulder replacements, 280 (33%) fewer elbow replacements and 533 (53%) fewer ankle replacements.

The research also threw up discrepancies across the UK on the effect of the pandemic. Wales saw a reduction of 8,001 (67%) procedures and Northern Ireland a reduction of 2,833 (64%). That compared to 96,088 (47%) in England.

The report’s authors estimated that a 5% expansion in provision immediately compared to 2019 figures will make up the deficit over 10 years, while a 10% increase will make it up by 2026. However, those projections could be thrown into considerable doubt should fresh waves of the pandemic force further cuts.

The authors’ interpretation of the results reflects that: “As the pandemic evolves, further waves of infection are likely to restrict surgery and see the deficit increase, therefore projections of time taken to address the deficit must thus be regarded as the best-case scenario.

A significant expansion of joint replacement services compared to 2019 is urgently required to address this deficit.”

Summarising the report, the authors said: “The COVID-19 pandemic has impacted health, economies and the functioning of societies globally. In addition to direct health effects, it has indirectly impacted population health by limiting access to non-COVID treatments, including joint replacements.

“The pandemic has necessitated re-organisation of healthcare with the private sector providing support to public hospitals in some areas.

The full impact is therefore difficult to ascertain from public data sources alone.”

Outlining the importance of joint replacement to the nation’s health and wellbeing, the report states: “Joint replacement is a common and important surgical procedure used to treat a variety of musculoskeletal problems including osteoarthritis and acute trauma. It is a highly successful procedure that reduces pain and disability enabling participation in and contribution to society. The Lancet described joint replacement as ‘the operation of the 20th century’.

“Joint replacements are long-lasting, with over half of hip and knee replacements lasting in excess of 25 years and 90% of shoulder replacements lasting in excess of 10 years. For very many people it is a curative procedure for the debilitating effects of end-stage arthritis.” q www.yourexpertwitness.co.uk

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Podiatry hails blueprint for future [

ON 16 NOVEMBER the Royal College of Podiatry (RCPod) published a landmark report on what the profession needs to do to develop, sustain itself and thrive in the future. The report, which was authored by Professor Mike Saks and named after him, is the culmination of work by the college’s Workforce, Education, and Development Strategy Group, chaired by Professor Saks.

The report lists 28 recommendations for the college, its council and the profession, so podiatry can seize a number of significant opportunities and grow its position within healthcare in the UK. The strategy group met frequently throughout 2020/21 to consider 14 separate and internally produced reports that addressed issues across the profession. The resulting report calls on the college to do more to tackle diversity issues in recruitment, improve leadership qualities within the profession, expand its research base, increase its influence and impact, and meet the major challenges that it currently faces in serving an increasingly ageing population beset by long-term conditions and co-morbidities.

Professor Saks, who is Emeritus Professor at the University of Suffolk, commented: “The college and the profession need to do more to meet internal and external challenges – many of them considerable – that threaten future opportunities. That is why my recommendations to the council of the college are designed to address those challenges and to take the profession positively forward into the future. I look forward to seeing how these recommendations are incorporated into the college’s strategic plan.”

The RCPod’s chief executive and general secretary Steve Jamieson added: “Healthcare professions – and allied health professions like podiatry in particular – face huge challenges: politically, financially, in its diversity and leadership and in being able to recruit and retain high-skilled clinicians to accommodate the increased public need for services. My thanks go to Professor Saks and the college’s Workforce, Education and Development Strategy Group for making sense of the task ahead. Not only does it set the college on a path to guide the profession to achieve these goals, but the report also provides a clear framework for all of us to work to so that podiatry, podiatrists and their life and limb-saving interventions and care can be recognised and appreciated as widely as possible.” q

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What are the causes and treatments of venous thrombosis in the arm?

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

[VENOUS THROMBOSIS in the arm is far less common

than in the leg, but may give rise to troublesome symptoms.

Problems in the arm may occur in young people as part of ‘thoracic outlet syndrome’ in which the veins, arteries or nerves to the arm become compressed as they leave the chest to reach the arm.

Causes of venous thrombosis in the arm

The blood supply to the arm comes from inside the chest. The subclavian artery arises from a major branch of the aortic arch in the chest and passes under the clavicle and over the first rib to enter the arm. On the way back to the heart, the subclavian vein takes a similar route and joins the large veins in the upper part of the chest before draining back to the heart. The nerves to the arm arise in the neck and again pass between the first rib and clavicle.

A group of related conditions arise when the gap Prominent veins over the front of the left shoulder in a patient with a history of between the first rib and the clavicle is too narrow for the previous subclavian vein thrombosis blood vessels and nerves. That can arise as a result of a congenital abnormality or after injury leading to fractures However, other options include thrombolytic treatment to remove of the ribs or clavicle. The resulting syndromes are known collectively venous thrombosis and stenting of the reopened vein to prevent it as ‘thoracic outlet syndrome’. Compression of the nerves to the arm closing again. The initial problem causing the venous thrombosis is leads to pain in the arm, mainly in the hand. The subclavian artery may the reduced opening between the first rib and the clavicle. That can suffer thrombosis if compressed, leading to ischaemia of the arm. The be opened by excising the first rib, which is effective in the venous, subclavian vein can also suffer thrombosis leading to swelling in the arm. arterial and neurological types of thoracic outlet syndrome.

Subclavian vein thrombosis may occur in body builders and athletes Clinical series, but not randomised clinical trials, have been – more commonly in men, but women may also be affected. Young published in which those methods of management have been adults are often affected. The condition is sometimes known as evaluated. All show potential advantages in skilled hands. Potential ‘effort thrombosis’ or eponymously as ‘Paget Schroetter syndrome’. defendants are likely to point out that detailed evidence of efficacy of General causes of thrombosis, such as inherited conditions leading to those treatments has not been published and a wide range of clinical thrombosis and the oral contraceptive pill, may also be factors. practice is considered to be acceptable in vascular surgical practice.

Iatrogenic causes of subclavian vein thrombosis are common these That is likely to lead to difficulty with any claimant’s liability and days. They arise from the use of central venous catheters in intensive causation cases. care units. That has been a common problem arising during the COVID-19 pandemic, since that infection is also a strong risk factor Outcome of upper limb venous thrombosis for thrombosis. Treatment of patients with cancer often necessitates In many patients the blocked subclavian vein will develop a new injections via a central venous catheter. The combination of cancer and channel after a period of anticoagulant treatment. A larger proportion the catheters may lead to venous thrombosis. The subclavian vein is of veins appear to regain blood flow after thrombolytic treatment. a common route by which central venous catheters reach large veins In some patients swelling in the arm disappears as the thrombus near the heart. is reabsorbed. Collateral venous drainage may develop around the shoulder and prominent veins may appear over the chest (pictured).

Deep vein thrombosis of the upper limb Some patients develop pain or heaviness in the arm after short Acute venous thrombosis in the upper limb veins presents as periods of exercise, while in others the neurological features such as swelling of the arm, combined with dusky discolouration due to venous pain in the arm or hand may become more troublesome. congestion. The venous obstruction is readily seen on ultrasound Solutions for patients with persistent symptoms include resection imaging, as is the case with DVTs arising in the lower limb. of the first rib or venous bypass procedures, so even when a venous In general, anticoagulant treatment with heparin or modern oral thrombosis has a poor initial outcome it can be improved with anticoagulants is recommended for upper limb venous thrombosis. additional treatment.

NICE has offered very detailed advice on the investigation and In conclusion, venous thrombosis in the upper limb may arise from treatment of deep vein thrombosis of the lower limb in NICE Guideline a number of causes. Anticoagulant treatment is accepted practice, but 158; however, that document offers no advice on the management other than that a wide range of clinical practice is considered to be of venous thrombosis in the arm. As a result, no detailed guidelines acceptable management. In patients with a poor late outcome, surgical for management are available, which makes litigation regarding the solutions including first rib resection or venous bypass operations may condition much more difficult. In general, it would be considered improve the outcome. The diversity of medical opinion in this field of substandard practice to manage an upper limb thrombosis without medicine makes litigation unsatisfactory or infeasible in many cases. q anticoagulant treatment. www.yourexpertwitness.co.uk

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Record numbers await heart tests, BHF finds [FIGURES RELEASED by the British Heart Foundation (BHF)

show that, at the end of September 64,962 people in England had waited more than six weeks for heart ultrasounds, known as echocardiograms: 20 times as many as there were at the end of February 2020 when the pandemic started to bite. It is the highest number since figures were first published in their current form, and represents 44% of the total waiting list for echocardiograms.

Echocardiograms – or echos – are tests which look at the structure of the heart and are used when someone has had a heart attack or if they have heart failure. They are often used to routinely diagnose congenital heart disease and heart valve problems.

As the NHS in England works hard to recover from the disruption to ‘routine’ care caused by the pandemic, significantly more echo tests are being performed in England than during the first 2020 lockdown; however, analysis by the BHF shows that, on average, around 10,000 fewer echo scans are carried out each month than before the pandemic.

According to the BHF: “We have warned that widescale disruption and reduced access to these vital tests has created a huge ‘hidden’ backlog of people with heart disease who have not yet made it onto treatment waiting lists.

“Long waits put lives at risk. Delaying a heart disease diagnosis increases the likelihood of death or disability, despite decades of research giving us life saving treatments.

“The government must act now to reduce the backlog of vital echo tests. Patients need to see a specific recovery plan for cardiovascular services in England that addresses the cardiology NHS workforce crisis and outlines how newly announced diagnostic centres could be used to help diagnose heart conditions.”

Dr Sonya Babu-Narayan, the BHF’s associate medical director and consultant cardiologist, commented: “Waiting lists for heart treatments were too long even before the pandemic began, and they are now rising to record levels. Yet this is only half the story. Without an echocardiogram, doctors can’t see how well the heart is working and if someone needs potentially life-saving treatment for heart disease.

“That matters because the long delays we now see for heart imaging tests create a domino effect of disruption to heart care and treatment that ultimately puts lives at risk. This is all the more tragic when effective heart treatments exist.

“The backlog of these vital heart tests must be urgently addressed.

We need to see a specific plan for cardiovascular care recovery, focused on tackling cardiology vacancies, training more heart

specialists and using new diagnostic hubs to deliver delayed heart diagnosis and care.

“This could make all the difference in preventing more deaths and disability from treatable heart conditions.”

To make matters worse, analysis from the BHF also reveals a stark postcode lottery for access to echocardiograms in England.

In some English regions, 55% of those waiting for an echo test had waited more than six weeks at the end of September. q

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Surgeons call for Code of Candour following fat freezing complications [

THE British Association of Aesthetic Plastic Surgeons (BAAPS) has unveiled worrying data that reveals serious complications, psychological distress and permanent disfigurement as a result of socalled fat freezing treatments, marketed as low risk and with celebrity endorsement.

According to a BAAPS audit of complications from treatments that required surgery between 2018-2020, 7% of members reported having to deal with serious complications, with 21 patients requiring surgery over the three-year period.

All patients suffering complications were referred to BAAPS members from outside non-surgical practitioners requesting support and surgical expertise.

BAAPS president Mary O’Brien commented: “Every procedure, even nonsurgical, has risks as well as benefits. This underlines the need for properly qualified medical practitioners, not only to be able to carry out treatments safely, but also able to recognise and deal with complications should they arise. This is not something that can be picked up during a weekend course. It emphasises the need for proper training, robust regulation and appropriate consultation so patients can weigh up the risks versus benefits – the cornerstone of informed consent.”

The figures were revealed in the wake of Linda Evangelista’s decision to share her devastating adverse reaction to a fat freezing treatment that she said has left her

‘permanently deformed’. The release of the data aims to protect others and make them think more carefully before rushing into treatments that are not risk free.

BAAPS vice president Marc Pacifco added: “Celebrity culture has clouded people’s judgment by making them blind to the risk of complications – a phenomenon that has been exploited by manufacturers and clinics in pursuit of sales over safety.”

Surgical problems from fat freezing relate to either paradoxical adipose hyperplasia (PAH) or skin necrosis from a freezing injury.

With PAH, rather than causing fat loss, fat freezing can stimulate fat cells to grow.

That causes simultaneous damage to the lymphatic channels in the skin and subcutaneous tissue, meaning it occurs with lymphoedema and fibrosis (scarring) in the underlying fat. Although attempts to remove the extra fat can be made with liposuction, in tissue that also has underlying scarring and lymphoedema it is often not so successful, leaving patients with a permanent deformity.

Skin necrosis occurs when fat freezing attempts to remove fat by preferentially freezing the underlying fat cells whilst protecting the overlying skin from freezing injury. That process cannot always guarantee protection of the skin from injury – no process can be totally safe – so damage to the overlying skin leads to skin necrosis (death of areas of skin). That will always leave patients with permanent deformity and scarring.

The audit revealed that all 21 patients who needed surgery to attempt correction were left with some permanent deformity or scarring which was not present beforehand.

Of those, two reported feeling suicidal from the complications of fat freezing, while nine required liposuction, and eight required an abdominoplasty – including one ‘fleur de lys’ abdominoplasty, which has not only a horizontal scar from one side to the other, but also a vertical scar from the top to the bottom of the abdomen. A further four required surgery for skin necrosis, as fat freezing had caused skin in the abdomen to die which needed surgical removal and reconstruction of the abdomen.

The root of the problem, says BAAPS, is that non-surgical treatments are often released onto the market with less longterm follow up than comparative surgical operations. They are ‘sold’ on the back of a celebrity endorsement, which sways patients to have treatment rather than being able to focus on a balanced discussion of benefits versus risks.

BAAPS has called for a Code of Candour for celebrity marketing which would require a celebrity endorsement to state that it is a paid promotion – either by payment itself or an inducement such as free treatment. The celebrity should also say if they had other treatments which may have contributed to the overall result and the endorsement should show a clear ‘before and after’ so the public can see what result the celebrity actually achieved. q

Breast implant guidance is updated [THE GUIDANCE ON breast implant-associated anaplastic large cell lymphoma

(BIA-ALCL) has been updated with the latest information for patients and healthcare professionals.

People with breast implants do not need to have them removed in the absence of any symptoms that have been associated with this uncommon form of cancer.

BIA-ALCL is uncommon, but it is important that patients who are considering surgery talk with their surgeon to discuss the benefits and risks as part of a shared decision-making process. Patients should make sure that they understand the risks involved before giving their informed consent to the treatment option that is right for them.

Anyone who has developed a problem with a breast implant should tell their surgeon and GP, and also report it through the MHRA Yellow Card Scheme.

Clinicians should discuss the potential risk of BIA-ALCL when seeking informed consent of new patients, and with any patient returning for review of their breast implants.

It is important to report cases of BIA-ALCL to the MHRA through their healthcare institution’s local incident reporting system and/or their national incident reporting authority as appropriate for England, Scotland, Northern Ireland and Wales. They should also ensure the patient’s details are recorded in the Breast and Cosmetic Implant Registry. q www.yourexpertwitness.co.uk

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Book will celebrate the work of hand surgeons [

PATIENTS WHO HAVE had their lives restored, or even saved, were among the honoured guests at the launch of a crowdfunding project to produce a book celebrating the work of hand surgeons and their inspirational patients. They joined their surgeons and other members of the British Society for Surgery of the Hand (BSSH) at the event at the Royal College of Surgeons in London.

Hands Re:Worked is backed by celebrities such as JJ Chalmers and Cerys Matthews, who are both staunch supporters of the work of members of the BSSH. As part of the BSSH charity project hand surgeons across the UK are appealing for other patients, their friends and their families to come forward to also star in the new book celebrating their inspiring stories.

Afghanistan veteran, Royal Marine and Invictus Games Gold Medalist J J Chalmers said: “I came very close to losing both my hands and thanks to the incredible work of my surgery team I have just about kept both of them. However, I have a level of function that quite frankly before my injury I would have taken for granted.

“I suppose that’s the thing that we all too often take for granted: just how important our hands are and just how we depend on them every single day to live – let alone to do the things that we love. And it’s not lost on me that it was the incredible work of the hands of my

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hand surgeon that led me to be able to rediscover my passions that I had before: whether it was as a sportsperson, a woodworker and now as a father.”

One of the guests at the launch was Paul Kelly (pictured), a ‘miracle’ patient who cheated death when he fell into an industrial mixer and suffered horrific injuries to both his hands and legs. Paul lost his left hand around the wrist, the fingers and thumb from his right hand and his left leg below the knee. An operation to save and rebuild his life lasted over 22 hours, reattaching his left hand and the fingers from his right hand – and using the big toe from his left leg to construct a thumb for his right hand. All that was achieved at Wythenshawe Hospital in Manchester.

Now he is working to raise awareness about the surgical skill and therapy that transformed his life.

BSSH president and consultant hand surgeon Sue Fullilove, who works at Derriford Hospital in Plymouth, said: “There has never been a better time to highlight the fascinating good news stories that come out of our operating theatres. We are shining a spotlight on the life-enhancing work our surgeons do on a daily basis all around the country and how we are now, even in these uncertain times, working harder than ever to make sure our patients get the treatment that they need and deserve.” q

Debate rages around diagnosis of PTSD [THE STRESSES ASSOCIATED with

COVID-19 have caused some debate among psychologists and psychiatrists. The general consensus is that there is not yet enough evidence available to assess whether the pandemic has resulted in a spike of PTSD cases. And indeed there has been a debate carried on in the pages of the BMJ online as to whether PTSD is over or underdiagnosed.

According to John Tully at the University of Nottingham and Dinesh Bhugra at King’s College London’s Institute for Psychiatry, Psychology & Neuroscience (IoPPN), PTSD is a serious and uncommon condition resulting from severe trauma; but it has unhelpfully become an umbrella term incorporating other disorders and normal reactions to stress.

They acknowledge that PTSD may be underdiagnosed in military settings and in the developing world, which has limited psychiatric resources. But elsewhere, they argue that PTSD is often conflated with normal responses to difficult situations, which has led to increased pressure on services to make this diagnosis.

“The conflation of stress with trauma – and of trauma with PTSD – has become rife,” they write. “This is the most convincing explanation for overdiagnosis.”

They cite factors such as the role of

‘compensation culture’ and vested interests of the ‘trauma industry’, which might also be involved. Alternatively, it may be that psychiatry and society have become more understanding of trauma, and hence more flexible about boundaries for diagnosis and treatment.

They believe that approach may be problematic at a public health level: “…where resources are finite, and a line must be drawn somewhere as to what level of symptoms meets criteria”.

Misdiagnosis with PTSD also poses the risk that other more common conditions, such as depression, anxiety disorder and personality disorders are not being appropriately treated,

while trivialising PTSD risks the medicalisation of everyday life, devaluing resilience and protective social factors, they warn.

“On this basis, we must reclaim the diagnosis of PTSD for what it is – a profound and severe response to catastrophic events – and not a spectrum of reactions to trauma or everyday life,” they conclude.

On the other hand, Stephanie Lewis, Sarah Markham and Gerard Drennan at King’s IoPPN and the South London and Maudsley NHS Foundation Trust, claim that convincing evidence indicates that PTSD is much more commonly underdiagnosed, which has concerning implications.

They describe clearly specified criteria for PTSD, and say anecdotes that these criteria are applied too loosely to increasingly large numbers of people are simply not supported by valid research.

Instead, they point to evidence indicating that fewer than half of adults and two fifths of young people who meet criteria for PTSD have sought help from any health professional.

“These findings fit with our professional experience that people with PTSD often find it difficult to seek help ­– for example because of avoidance symptoms, concerns about stigma or fear that there may be no effective treatment,” they write. q

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Mental illness is twice as prevalent among refugees in detention, study finds [RATES FOR DEPRESSION, anxiety and PTSD in refugees and

migrants in detention are around twice as high as rates for those not in detention, according to a new systematic review published in the Royal College of Psychiatrists’ journal BJPsych Open.

The authors of the study, Prevalence of psychiatric disorders among refugees and migrants in immigration detention: systematic review with meta-analysis, interpret the findings as evidence of the harmful effect of immigration detention on the mental health of refugees and migrants – who are already at higher risk of mental illness. Looking at adults, they found that 68% of detained refugees and migrants have depression, 54% have anxiety and 42% have PTSD. More than 23,000 refugees and migrants were detained in the UK between April 2019 and March 2020. Many will have endured terrible experiences in their country of origin and during their often difficult and dangerous journeys to the UK, including bereavement, separation from loved ones and loss of home, status and identity.

Dr Marc Molendijk and Irina Verhülsdonk, lead authors of the paper from Leiden University in The Netherlands, said: “Immigrant detention seems to have an unacceptable negative effect on the mental health of refugees.”

Professor Cornelius Katona, lead author of the Royal College of Psychiatrists’ (RCPsych) Position Statement on immigration detention, published in April, said: “This research provides further evidence of the harm caused by detention, which is exacerbating and triggering mental

How do we treat the psychological effects of RTCs?

By TIMOTHY ACTON, chartered clinical psychologist at Therapy in Motion Ltd

[PSYCHOLOGICAL REACTIONS to low-energy road traffic

collisions (RTCs) that do not involve death or serious physical injury are not well understood. Many drivers and passengers involved in RTCs – typically associated with soft tissue injuries – develop travel anxiety as drivers and passengers. They experience symptoms of panic in some situations and avoid car travel when possible.

That situational anxiety defines an adjustment disorder with anxiety. It is important to arrive at a correct formulation, because it has a bearing on the optimum treatment – and prognosis.

Post-RTC situational anxiety is characterised by the understandably exaggerated appraisal of the risk of a further RTC: a cognitive process.

The correct remedy is therefore cognitive, and adults who present with that difficulty will need to undergo cognitive therapy, or CBT influenced by cognitive techniques rather than standard CBT, or anxiety management. There is some anecdotal evidence also that driver coaching, based on developing thinking skills in drivers, can further promote recovery from the psychological sequelae of RTCs. Post-traumatic responses in such RTCs can involve features in addition to situational anxiety – for example nightmares, flashbacks, emotional distress, guilt or shame, irritability – resembling PTSD. In those circumstances the preferred treatments for PTSD – eye movement desensitisation and reprocessing (EMDR) or traumafocused CBT (TF-CBT) – will address the traumatic elements, but not the situational anxiety. A combined treatment is required to address the reprocessing issues with EMDR/TF-CBT, and in addition to address the situational anxiety with cognitive therapy. q

illness in already very vulnerable and traumatised people.

“Detainees experiencing mental illness should receive the same standard of care as anyone else, but the very fact of detention makes this impossible. The reality is that being detained in these centres is very distressing and harmful if you have a mental illness, because of the environment itself and the lack of access to specialist treatment.”

RCPsych president Dr Adrian James added: “Refugees and migrants with existing mental illness should only be detained in very exceptional circumstances. It is also crucial that staff are given proper training to identify mental illness when it arises or deteriorates significantly, so that this can be managed appropriately by linking with local mental health services.

“The Nationality and Borders Bill must be scrapped, as this harmful legislation will worsen the mental health of refugees and migrants. The Bill stands to leave thousands in limbo by focusing on how they arrived in the UK, rather than their need for help.”

To produce their findings the authors searched the existing literature for relevant studies, applied eligibility criteria and assessed methodological quality. Nine independent studies were then identified for joint statistical analysis. q

Psychologists call for ban on isolation booths [

THE BRITISH PSYCHOLOGICAL SOCIETY (BPS) has called for a ban on the use of isolation booths, seclusion rooms and all forms of segregation in schools, following CCTV footage of pupil abuse in isolation booths at a special school in London.

The BPS says that the use of isolation booths is not backed by evidence and has been proven not to be effective. Such approaches to children’s behaviour are overly simplistic and run counter to the understanding of child development.

Vivian Hill, vice chair of the BPS’ Division of Education and Child Psychology, said: “The use of isolation rooms breaches the UN convention on the rights of the child, denying them their right to learn effectively, and disproportionately affects those children and young people who need the most support. This includes children with disabilities and special educational needs, those living in poverty, children in care, boys from black and mixed backgrounds and children already experiencing lower levels of emotional or psychological wellbeing.” q

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What is the link between trauma and fibromyalgia?

by Dr IVAN RAMOS-GALVEZ, consultant in pain medicine

[

FIBROMYALGIA (FM) is a chronic condition characterised by widespread deep musculoskeletal pain accompanied by various other non-specific symptoms, including chronic fatigue, sleep and mood disturbances and cognitive problems. The condition is relatively common, occurring in around 2-8% of the adult population, and is much more common in women than in men.

For years the existence of FM was a controversial topic, but nowadays it is generally accepted as a real entity. However, there is still no available test to confirm diagnosis and the reporting of symptoms is entirely subjective. It has been suggested that in up to one third of cases FM may be triggered by previous traumatic events in the patient’s life, with the other two thirds occurring spontaneously.

Physical trauma, often in the form of an accident at work or a traffic collision, is commonly cited as a precipitating event for FM. However, it is difficult to prove causation, particularly where an incident has not caused any visible injury. Despite that, increased rates of FM following accidents have been widely reported. Studies in the UK, US and Israel have reported incidence rates of between 1% and 22% for FM or diffuse pain for individuals involved in car and train accidents.

Those rates appear much higher than would be expected in the general population, particularly in individuals in whom the original injury occurred in the neck. Furthermore, in one study an ‘at-risk’ group could be identified on the basis of poorer health and psychological variables.

However, a study conducted in Lithuania, where disablement is both less common and less well compensated, found no cases of chronic neck pain following a motor vehicle accident.

Workplace injury is also often cited as a causal factor in FM. Prospective studies of new workers have reported that, 12 months after starting the job, rates of chronic widespread pain were as high as 15%.

The majority of cases appear to be due to a single injury, with the lower back and shoulder being the most commonly cited areas of damage.

However, generalised activities such as repetitive movements, lifting, pushing or pulling heavy weights, kneeling or squatting and working with the hands at or above shoulder height have also been claimed as triggering factors. Psychosocial factors, such as monotonous work and low social support, appear to increase the risk even further.

Psychological trauma and FM

As well as physical trauma, many studies have reported an increased prevalence of psychological trauma in FM patients.

Adversity in early life appears to be particularly important. Factors such as being taken into care, the death of a parent, family financial hardship, emotional neglect and behavioural problems have all been linked to chronic widespread pain later in life, and those associations appear to be more marked in patients who are not concurrently suffering from depression. A clear gradient of increasing loss of function in participants with higher trauma scores, which again was seen more clearly in non-depressed individuals, has also been reported. Childhood abuse nearly doubles the risk of developing a chronic pain condition, including FM, in adulthood. However, a lifelong history of sexual abuse does not show an association with FM, suggesting that the timing of the trauma may be critical.

When taken as a whole, there does appear to be evidence of a link between trauma and the development of FM. A review of 51 studies found that the majority reported a significant association between physical or emotional trauma and the onset of chronic widespread pain or FM. The evidence appeared to be strongest for psychological trauma and FM, where the link was widely demonstrated. However,

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many of the studies on which this review was based provided data which was of low-quality, when assessed by GRADE criteria.

One major problem with most of the evidence regarding trauma and FM is that it comes from retrospective studies, which are reliant on the participants’ recollection of traumatic events. Patients who are suffering from a disease with no obvious cause may look for past events in an attempt to explain their condition. However, research shows that adult recall of adverse childhood experiences actually tends to underreport such events. That would tend to dilute any associations seen between trauma and FM. Some adults do not report childhood trauma because they feel they have ‘moved on’ and no longer identify as a trauma survivor.

Others will simply not remember events that happened in very early childhood. Individuals who continue to report trauma may have been more negatively affected by the event and thus more likely to experience greater pain-related disability in later life.

Another issue with retrospective studies, particularly those of a cross-sectional design, is that the temporal relationship between trauma and FM cannot always be established. A clear and logical time sequence is critical in trying to prove causality. Finally, physical trauma, such as a serious accident, is almost always accompanied by psychological sequelae and it is difficult to separate out the role that each plays in the causation of FM. The mechanisms by which trauma leads to FM are not entirely clear. It has been suggested that certain aspects of physical work may result in centralised pain sensitivity. Traumatic experiences in early life may predispose to FM by excessively activating stress responses during a critical period of development, thus altering normal development and reactions to stress and painful stimuli through hyperalgesic priming. As the resulting pain is a stressor, it may lead to a positive feedback loop, which serves to increase anxiety levels and further impact on stress regulation.

Alteration of the stress response appears to be mediated via the hypothalamic-pituitary-adrenal axis, although the precise way that happens is not yet known. Trauma increases the responsiveness of the central nervous system due to decreased functional connectivity in the descending pain-modulating system and heightened sensory responses. Furthermore, childhood abuse has been linked to a disruption of normal diurnal cortisol levels – a hormone associated with stress – and that effect has also been observed in FM patients.

The observation that experiences in early life can lead to FM many decades later suggests that the neuroplastic changes associated with stress are part of a chronic process that develops slowly. It is also likely that the effects of traumatic events are mediated by the individual’s genetic predisposition and psychological status.

Treatments for FM

FM is a difficult condition to treat: pharmacological treatments are not effective for many patients. As a result, non-pharmacological interventions such as cognitive behavioural therapy (CBT) are often recommended, but frequently only lead to modest improvements in the patient’s condition.

Recently, research has examined the concept of customising treatment on the basis of psychosocial needs to increase its efficacy.

One approach, called emotional awareness and expression therapy (EAET), combines techniques from several other psychologically-based therapies. That approach tries to reduce pain and other symptoms by framing FM as a central nervous system-based process that is strongly

influenced by emotions relating to trauma, adversity or conflict that are avoided or unexpressed. The model also encourages awareness and expression of those emotions. Compared to other non-pharmacological treatments, patients treated with EAET reported a reduction in pain, psychological symptoms and cognitive difficulties and improvements in functioning and life satisfaction. The results were comparable to those achieved through medication, but had the advantage of lasting for at least six months after treatment was stopped. As the model of EAET used in the trial did not include many CBT components, it is likely that combining these two therapies would produce even better results.

While the available evidence may not prove that trauma is linked to FM, it also does not prove that the condition cannot be caused by an injury or adverse event. However, it appears unlikely that trauma is the sole factor in the onset of FM. Instead, a combination of factors – including previous physical and psychological health and genetic susceptibility ­– are likely to work together to initiate and maintain FM, and it is difficult to determine the relative importance of any single factor in any one individual. By identifying risk factors that occur early in life, it may be possible to prevent chronic pain later in life and provide more effective treatments when it does occur. q • Dr Ivan Ramos-Galvez is a consultant in pain medicine at the Royal Berkshire Hospital with a private practice at Spire Dunedin and Circle Hospitals in Reading. After extensive training in spinal surgery at the Oxford Deanery, he undertook further specialisation in pain medicine. His understanding of the interactions between those complex areas of medicine means he is often called upon to provide an opinion within his clinical practice, or as an expert witness where spinal surgery has led to complications.

Dr Ramos-Galvez has a special interest in neuropathic pain and CRPS and has developed a treatment portfolio ranging from simple oral anti-neuropathic agents to neuromodulation. Read his full biography and download his CV at www.medicolegal-partners.com/ramos-galvez.

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