Your Expert Witness No.62

ENVIRONMENTAL ISSUES

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Opening Statement

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MUCH HAS BEEN MADE in this publication of the responsibility the expert witness has to ensure their evidence is impartial, and the consequences that can follow from an expert appearing to act as an advocate for one party rather than to be advising the court. A succession of stories on the websites of various expert witness organisations seems to show that the message still has not got through in some instances.

In a recent case reference was made to the description of a trial as akin to a broad street with the expert resolutely walking down the middle, not veering towards one side or the other. In the case in point it seems the expert for one party was guilty of metaphorical kerb crawling.

• The expert’s duty of impartiality, together with the many other duties incumbent upon expert witnesses, are the subject of numerous comprehensive training courses run by a plethora of organisations, including various professional institutions and commercial companies. The wrath of the courts awaits those who offer themselves as experts but do not embark upon the necessary training and CPD activity needed.

• That need to keep abreast of developments has become even more pressing in recent times with the move towards virtual or remote meetings, initially out of necessity but since, more than often, through choice. The move away from meeting in person can apply to hearings, conferences and even trials. In our latest discussion on the subject, the initial consultation comes under scrutiny.

• All the fundamentals of the expert witness’s world are the substance of a number of annual gatherings. The next one is the Bond Solon Conference in November. Highly regarded in the sector, it is just one of the services provided by Bond Solon for expert witnesses. Another is the brace of university qualifications offered by the company: one for experts in England and Wales and the other for their counterparts in Scotland.

• Scotland has, of course, always done things differently from the rest of the UK. Its legal system had its own traditions even before devolution, when the system diversified further. Now a number of overhauls are being proposed – some more popular than others. While there is broad agreement on the need to reform regulation of the legal system, for example, there is no such consensus on the creation of new courts or the extension of judge-only trials.

• One area of all legal systems that is a constant source of complaint is its cost. To many the eye-watering cost of any legal process is unjustifiable – and always has been, as Dickens averred. Recouping that cost, however, is not always allowable, as one freeholder in London found out. Landed with a £2m bill for legal expenses following a planning dispute the freeholder attempted to add it to the service charge of their leaseholders. They objected and the court ruled against it.

• Using underhand methods to obtain money is the practice of the fraudster – or at least the attempt to do so. HMRC recently thwarted just such an attempt in Northern Ireland: in this case the fraud was to be perpetrated against the Construction Industry Scheme (CIS). One would-be fraudster was jailed and three others given suspended sentences.

• Uncovering fraud is the stock-in-trade of the forensic accountant. Accountancy in all its forms –or rather recruitment into the profession – was the subject of a recent report by the Financial Reporting Council. The FRC found the sector to be in rude health in that respect, with more and more people entering it worldwide. Fraudsters beware! q

Ian Wild

Ian Wild, Director of Business Development Your Expert Witness

EWI commits to equal opportunities pledge

[THE EXPERT WITNESS INSTITUTE (EWI) has committed its support as an organisation for the recently launched Equal Representation for Expert Witnesses (ERE) Pledge. The pledge seeks to drive, on an equal opportunity basis, an increase in the number of women appointed as expert witnesses in dispute resolution procedures worldwide. ERE’s objective is to achieve a fair representation as soon as practically possible, with the ultimate goal of full parity.

Discussing the pledge’s raison d’être, its co-founder and joint managing director of AlixPartners, Kathryn Britten, commented: “Having acted as an expert witness in major commercial disputes for almost 30 years, I have been consistently shocked by how few women have been appointed as my opposing experts – yet I have consistently seen very capable women producing excellent work as ‘Number 2’. We need to do something to ensure that talented women have the opportunity to act as expert witnesses in their own right.”

Her fellow co-founder and joint MD of AlixPartners, Isabel Kunsman, added: “As an expert witness I am acutely aware of the need to do more in my own profession. There are many impressive women working in this field but the higher up the ranks you go, the lower the number of women you see, particularly among testifying expert witnesses.”

In 2020, curious to assess the landscape and attribute some hard figures to this particular issue, Kathryn and Isabel commissioned a survey. They discovered that 56% of arbitrators and lawyers had seen no women in expert roles in the past three years, while only 1% had seen four or more women in expert roles in the same period.

Nevertheless, Kathryn and Isabel have been encouraged by the response from members of the dispute resolution community worldwide, who have offered their support to improve the representation of women experts from now on.

Their efforts to engage the legal and expert witness communities have paid off and they have achieved significant milestones. The pledge has recently passed the 200 individual signatures mark, with more than 40 organisations, including EWI, also committing to the ERE Pledge. q

Experts will gather for annual Bond Solon conference

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THE LARGEST GATHERING of expert witnesses in the UK will be happening on 4 November when the Annual Bond Solon Expert Witness Conference convenes – both online and in person at the Church House Conference Centre in Westminster.

The conference is a must-attend event for experts and provides them with useful networking opportunities; it also enables them to keep up to date with what is happening on the expert witness landscape. The keynote speaker this year is the Lord Chief Justice, Lord Burnett of Maldon. The ever-popular legal update will be given by Kathryn Clague, lecturer in law at Cardiff University.

A selection of other top speakers will address topics designed to provide experts with practical takeaways and essential knowledge to support them in their expert witness practice.

The full programme has been released and is available to view on the Bond Solon website at www.bondsolon.com

Attendance of the conference will also enable medical and healthcare expert witnesses to comply with the on-going expert witness training requirements laid out in the Academy of Medical Royal Colleges’ Guidance. q

Why an expert should not be hand-in-hand with their client

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BOND SOLON have pointed to a recent Family Court case that provides key commentary on the issue of expert impartiality. In the case of Gallagher v Gallagher, the judge found that the husband’s expert had effectively become part of that party’s legal team, acting in manner and mentality as an ’advocate’ rather than an independent expert.

The hearing was in relation to the wife’s application for financial remedies dated April 2020. In November 2020 the wife made a Part 25 application for the instruction of experts, including a forensic business accountant, a tax accountant and several surveyors.

At the Case Management Hearing on 25 May last year, Holman J gave his permission for two experts – Ms Longworth for the wife and Mr Singleton for the husband – to meet and produce a joint statement as to the husband’s business interests.

At the Financial Dispute Resolution hearing, Mr Justice Mostyn considered Mr Singleton, the husband’s expert, to be a ‘highly proficient, knowledgeable, intelligent and articulate accountant’ who ‘fully immersed himself’ in his instruction.

The judge also acknowledged the limits of expert impartiality, stating that: “Some might say that the forceful judicial demands for impartiality are tinged with unworldliness.

It seems to me to be not unlikely that subconscious forces may well incline an expert, who is being handsomely paid by one of the parties, to give evidence favourable to that party.’’

In spite of that, though, he agreed with the wife’s barrister about Mr Singleton’s conduct. He stated that Mr Singleton lacked the impartiality required as an expert witness, and instead acted in a ‘strategic defensive manner’ that had ‘all the hallmarks of the mentality of an advocate’.

The judge said that Mr Singleton’s attendance throughout the hearing was ‘highly suggestive of de facto membership of the husband’s team’. He referred to Mr Singleton’s email to one of the husband’s witnesses, a Mr Kerins, about a possible comparable transaction, stating: “It is a great comparable and we can argue that the contracts…’’ That highlighted his perceived membership of the husband’s team.

His written evidence put forward figures which were ‘as low as he could tenably go without failing off the spectrum altogether’ and his interruptions of Ms Longworth were ‘forthright, abrasive and adversarial – even degenerating on one occasion’.

Mr Justice Mostyn made reference to Vernon v Bosley (No 1) [1996] EWCA Civ 1310. In that case, Thorpe LJ compared a legal case to a broad street, with the plaintiff walking down

one side, the defendant on the other and the expert being ‘…ever mindful of the need to walk straight down the middle of the road and to resist the temptation to join the party from whom his instructions come on the pavement’.

He also referenced Lord Hamblen’s address to the EWI Conference, in which he said witnesses should refrain from becoming advocates themselves.

The judge viewed Mr Singleton’s evidence in light of his perceived bias. He disregarded some of the expert’s evidence but allowed others that he felt had been accurately recorded.

Bond Solon’s commentator concluded: “This family law case provides invaluable commentary for expert witnesses as to the manner of conduct, language and attitude that could be perceived by a judge to be lacking in impartiality.

“Whilst experts may be instructed by (and paid by) a party, it is of utmost importance that they do not consider themselves to be part of that party’s legal team. Their duty and obligation remain wholly to the court [for reference: Rule 35.3, Civil Procedure Rules; Rule 25.3, Family Procedure Rules; and Rule 19.2, Criminal Procedure Rules].” q

• The full commentary on the case can be viewed at www.bondsolon.com/experts-mustavoid-walking-hand-in-hand-with-the-client/

Consensus emerges on regulation reform

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ON 8 JULY the Scottish Government published its analysis of responses to its recent consultation on reforming the regulation of legal services. The report, Legal Services Regulation Reform in Scotland: Consultation Analysis, together with the published responses confirm that there is strong consensus from all respondents on reforms to the processes for regulating legal services and that professional bodies should maintain a role in complaint handling.

The Law Society of Scotland has backed reforms to the way legal services are regulated, but has cautioned against the creation of new regulatory bodies as unnecessary and expensive.

Responding to the analysis, the president of the Law Society of Scotland, Murray Etherington, said: “The report shows widespread support for the reforms suggested by the Law Society of Scotland such as introducing entity regulation, retaining a role for professional bodies in the complaints system and recognising the important role of the Lord President and Court of Session in safeguarding the independence of the regulation of the legal profession.

“The regulatory system needs to change because of unnecessarily complex processes and outdated procedures from 40-year-old legislation. The system for handling legal

complaints in particular is cumbersome, complex and costs too much. Meanwhile, rigid regulatory processes restrict our ability to step in quickly to protect the public interest.

“The Scottish Government should focus on addressing those issues on which there is consensus among all respondents, and introduce changes which could be progressed quickly through the Scottish Parliament.

“We are committed to continuing to work with

the Scottish Government and others in the legal services regulation space to modernise the regulatory system and protect the public interest.”

The lay convener of the Law Society’s independent regulatory committee, David Gordon, added: “The regulatory committee welcomes the consensus on proposed changes to how the complaints processes could be improved. We are already implementing many of these, where current legislation allows.” q

Lawyers oppose judge-only sex trials

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THE LAW SOCIETY OF SCOTLAND has raised serious concerns about a possible move to judge-only sexual offence trials in Scottish courts, and the creation of additional courts outside the existing judicial structure. The proposals are among a number contained in a Scottish Government consultation paper: Improving victims’ experiences of the justice system

Stuart Munro, convener of the Law Society of Scotland’s Criminal Law Committee, said: “It’s important that people who are affected by crime are treated with respect. We support changes that make it easier and less traumatic to participate in our justice system, but not if they compromise fundamental principles such as the presumption of innocence and the right to a fair trial.

“The right to trial by jury for serious crimes is a cornerstone of the Scottish legal system, and we believe replacing that with judge-only trials would carry risks with no discernible benefits. A jury will always be far more reflective of Scottish society than a single judge can be, which greatly reduces the potential for subconscious bias to influence trial outcomes.

“Juries are anonymous while judges are not. Overt public criticism of judges or the exertion of political pressure on them would be unfair on the judiciary and incompatible with justice.

“We would not support the creation of a new specialist sexual offences court outside of the existing court structure. This would add another layer of complexity and bureaucracy, which would come at a considerable cost.” q

Freeholder fails in bid to recoup litigation costs as service charge

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IN A PROMOTIONAL VIDEO celebrating a recent project, awardwinning architect Sophie Hicks said: “I think it’s very important for a new house to sit very comfortably and fittingly in its landscape.”

However, protracted litigation with neighbours over Ms Hicks’s development plans for her home in Holland Park, London, demonstrates how subjective and divisive opinions and perspectives on that can be.

The architect’s controversial plans involved a subterranean mansion, with a striking surface glass cube. The cube was designed to be even more arresting at night, when it would have been illuminated.

The freehold and leasehold owners of the neighbouring property, 89 Holland Park, strongly resisted the plans. That opposition was based on a deed of covenant over Ms Hicks’s plot that required the freeholder’s prior approval of her plans before she could apply for planning permission. The litigation eventually entailed three separate High Court claims, one of which also went to the Court of Appeal.

The key principles coming out of the past litigation were that:

• Aesthetics can be relevant considerations for consent to a covenantor’s proposals. Deliberations do not need to be limited to whether the plans will have an adverse impact on the capital or rental value of the covenantee’s tenement.

• Leaseholders’ interests are also relevant when determining whether a freeholder should grant consent when the covenant is expressly stated to be for the freeholder’s benefit. That is because Section 78 of the Law of Property Act 1925, which regulates the benefit of covenants impacting land, provides that a covenant made with a covenantee is deemed to have also been made with those deriving title from it.

Accordingly, the UK’s Court of Appeal decided that the freeholder was entitled to refuse consent to the development on aesthetic grounds and because the planned works would extend beyond a building line. Ms Hicks’s plans needed to be scaled back as a consequence.

That success came at a heavy cost to the freeholder: £2.7m in legal and other professional fees. Only some of those costs were recoverable from Ms Hicks as the loser in the proceedings. Overall, the cost to the freeholder was approximately £2m – a salutary reminder that a successful party in litigation may still be left out of pocket.

The freeholder attempted to recover the balance of its costs from its leaseholders as a service charge item, which the Judge described as ‘eye-watering’. Two dissenting leaseholders challenged the reasonableness of those service charges [Dell v 89 Holland Park (Management) Ltd [2022] UKUT 169 (LC)] . They had initially been supportive of the litigation against Ms Hicks; however, as their specific premises did not overlook the controversial development site, they had grown increasingly apprehensive of the litigation costs

and sought to distance themselves from the claims.

The case went to the Upper Tribunal. The question for the Upper Tribunal was: Did the leases entitle the freeholder to demand the charges as service charge items? The costs were for legal representation and expert advice in the litigation and objecting to one of Ms Hicks’s planning applications.

The freeholder relied on certain service charge items in the leases to justify recoverability, known as the ‘Sweeper Clauses’: “To employ all such surveyors builders architects engineers tradesmen solicitors accountants or other professional persons as may be necessary or desirable for the proper maintenance safety and administration of the Building.

“… to do or cause to be done all such works installations acts matters and things as in the reasonable discretion of the Lessor may be considered necessary or advisable for the proper maintenance safety amenity and administration of the Building…”

The Upper Tribunal decided in favour of the leaseholders of 89 Holland Park. The freeholder could not recover the balance of its litigation costs from them. Central to its decision were a number of important points, which landlords, leaseholders and other interested parties – such as lenders – ought to be alive to. q

• Dev Desai, a partner at Watson Farley and Williams, together with associate Alexander Mulroney, have produced a comprehensive commentary on the case at www.wfw.com/articles/a-stitch-in-time-maynot-always-save-nine

Who writes your expert reports?

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

[ A SILLY QUESTION, I know – but let’s persevere. It is a rock-solid principle of litigation that the expert must be independent, and that their opinions must be their own. The

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

leading case is Whitehouse v Jordan [1980] UKHL 12, where Lord Wilberforce said: “The report of the expert must be, and be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation.”

Almost identical words were used by Mr Justice Cresswell in The Ikarian Reefer [1993] 2 Lloyd’s Rep 68 when, listing the seven duties and responsibilities of expert witnesses, he started with this: 1. Expert evidence presented to the Court should be, and should 1. be seen to be, the independent product of the expert 1. uninfluenced as to form or content by the exigencies of 1. litigation (Whitehouse v Jordan, [1981] 1 WLR 246 at 1. p. 256, per Lord Wilberforce)

And this same principle of independence is now in CPR at 35.3(2) and equivalent parts in the FPR and the CrimPrR.

But what happens if the solicitor tries to interfere with the expert who is developing and expressing his opinions?

There was a strident example of this – and its consequences – in the recent case of Patricia Andrews & Ors v Kronospan Ltd [2022] EWHC 479. This was a group action by 159 residents near to a wood processing plant at Chirk near Wrexham, who complained of nuisance from dust, noise and odour.

When the date for filing of the Joint Statement of Experts had been passed (by two years!) it emerged that there had been very frequent contact between the claimants’ solicitors and their expert. Some exchanges were merely procedural, but on many occasions the solicitors had received drafts of the joint statement and made substantial suggestions for amendment.

The defendant made an application for the claimants’ expert reports to be excluded – a very serious situation which would have

left them without vital expert evidence. The Master did consider this, but because there was no trial date yet fixed, and because the time wasted on the claimants’ side could be remedied by costs, he found that this expert’s evidence should be excluded and the claimant could appoint new experts.

The behaviour of the claimant solicitors and expert had wasted two years, and the expert’s fees – now wasted – had been £225,000. There would no doubt also be a costs order against the claimants for waste of defendant lawyers’ time. So this interference by the claimant solicitors in the expert process had wasted a great deal of time and money.

There were strong suspicions that a similar situation had arisen in the case of Frederik Tylicki v Graham Gibbons [2021] EWHC 3470 (QB). Interestingly, this concerned the 3.20 at Kempton Park on 31 October 2016, but it was a tragic story.

At the last right-hand bend, Gibbons was in the lead on Madame Butterfly and Tylicki was fast gaining on him, mounted on Nellie Deen. Gibbons had left a gap between his horse and the rail, and Tylicki tried to take advantage by passing him on the nearside. As Nellie Deen’s head came level with Madame Butterfly’s haunch, Gibbons pulled on the right-hand lead, thus closing the gap. Tylicki had to arrest his mount, but in slowing down, its front hoofs became entangled with Madame Butterfly’s rear legs. Tylicki was thrown, the horse ended up on top of him, and he is now tetraplegic. He – and Gibbons, for that matter – was a very experienced jockey, but he will not ride again.

The trial was on liability only: Was Gibbons aware that Tylicki was alongside? Did he deliberately pull the right-hand rein? Was this all fair in love and racing, or was it a deliberate act, careless as to whether Tylicki might be injured?

There was a stewards’ enquiry, which found just a few minutes after the race that Gibbons had not been negligent, but the court was not influenced by that. HHJ Karen Walden-Smith said she had seen the videos from all angles many, many times, as well as stills. To give you the punch line, she found that Gibbons was negligent, so there will be a trial on quantum, and I foresee a very considerable amount in damages awarded.

But this is not the point of our story, so let’s get back to litigation and expert witnesses.

There were three experts, two for the claimant and one for the defendant. We will concentrate on Mr Ryan Moore, expert on riding for Mr Tylicki. He, like most in the case, was a very experienced retired jockey.

There had been difficulty in finding experts on racing because jockeys tend not to be well educated. So many, like Mr Moore, came from Ireland as youngsters, worked as stable boys, and climbed the ladder to become highly regarded jockeys. How then was Mr Moore to write his expert report and comply with CPR 35, particularly 35.3(2)?

A novel method was used. The

solicitor asked Mr Moore many questions, wrote out his answers, and built them into an expert report which was ostensibly written by Mr Moore. But it wasn’t his report. As Mr Moore said in evidence: “I ride horses. I don’t sit at a computer.” Mr Moore said that it had “...been made from notes made by the lawyers from what I have told them and in telephone calls.” One such call had even been when Mr Moore was on the touchline, watching his son in a school football match!

Unsurprisingly, there was a challenge from the defence that this was not an expert report at all, and that it should be ignored.

The judge considered matters very carefully, and even ordered disclosure of all the notes taken by the solicitor. She was very impressed with Mr Moore’s evidence and manner, particularly since he had never given evidence before, and she decided that this report was indeed “…the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation.”

Don’t try this at home; it was a very exceptional case. Just instruct your expert properly – having chosen an expert who knows the ropes – and let them get on with it. q

Trends report finds continued growth in accountancy

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IN AUGUST the Financial Reporting Council (FRC) published the 20th edition of its Key Facts and Trends (KFAT) Report, which provides statistical information and trends on the members and students in the accountancy profession.

This year’s report shows that membership of the accountancy bodies continues to grow, with nearly 390,000 members in the UK and Republic of Ireland and over 590,000 members worldwide. The number of accountancy students in 2021 in the UK also increased by 0.3% to 164,000.

The report also looks at trends in the audit market and found that the five largest challenger firms outside the Big Four continued to increase their share of the FTSE 250 audit market, auditing 24 companies in 2021, compared to 19 the previous year.

Improving competition across the FTSE 350 audit market is one of the primary objectives as the FRC transitions to the new regulator, the Audit, Reporting and Governance Authority (ARGA). The government recently set out how new powers for ARGA will boost resilience, competition and choice in the audit market in its response to the consultation on strengthening the UK’s audit, corporate reporting and corporate governance systems.

Tax fraud results in jail and suspended sentences for NI quartet

Despite the challenging economic climate, the FRC said, the Big Four firms increased their audit fee income by 6.5% from 2020 to 2021, compared with 7.9% from 2019 to 2020. While the audit fee income for audit firms outside of the Big Four also increased, the growth slowed to 12.5% from 2020 to 2021, compared with 20.9% from 2019 to 2020.

Commenting on the report, Iain Wright, MD for reputation and influence at the Institute of Chartered Accountants in England and Wales, said: “We’re pleased to see that the audit market is shifting and opening up, but the focus must remain on improving quality, while assuring investors and other stakeholders that the UK is still the best place in the world to do business. While it’s desirable that more firms enter the market for larger and complex audits – and are supported to do so – it is equally important that firms are not discouraged from retaining or taking on high-risk audits.

“At a time of economic uncertainty, the accountancy profession is an asset for the UK economy and our solid membership growth, more competition and choice in the audit market and strong UK student pipeline are positive signs.

“We hope the regulator will continue to work with the profession to support the improvements needed to drive up quality, choice and resilience in the market.” q

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A MAN HAS BEEN JAILED and three people given suspended sentences for operating a tax fraud in Northern Ireland. All three worked in the construction industry there.

The scam involved submitting false claims under the Construction Industry Scheme amounting to £260,000 between January 2015 and September 2017. On 7 September, Edward Copeland pleaded guilty at Antrim Crown Court to conspiracy to cheat the Public Revenue and was jailed for two years. In May, at the same court, Deborah Ramsey pleaded guilty to conspiracy to cheat the Public Revenue and was sentenced to nine months in prison, suspended for three years.

Two other men, Michael Gerard Donaghy and Stephen Matthew Fegan, were sentenced at Belfast Crown Court in January 2022 and December 2021 to suspended sentences of three and two years respectively.

Lucie Irving, assistant director of HMRC’s Fraud Investigation Service, said: “The majority of individuals and businesses pay the tax that is due – however there remains a determined minority like Copeland who refuse to play by the rules.

“HMRC is on the side of the law-abiding majority. By tackling the most serious forms of tax crime we are creating a level playing field for businesses and citizens. We are determined that they shouldn’t be disadvantaged or impacted by the criminal actions of others. We are successful in nine out of 10 cases we bring to court and this case is another example of that success.” q

[FORENSIC ACCOUNTANCY is a specialist area of accountancy. Generally forensic accountants are experienced qualified accountants in practice who have substantial commercial experience gained from decades of advising commercial and private clients and who have decided to use those skills in the specialist area of forensic accountancy.

Forensic accountancy is not for the faint-hearted and critically the forensic accountant must understand they are not a ‘hired gun’. When appointed as an expert witness the forensic accountant’s first duty is to the court not their instructing party.

So what should the instructing lawyer and client consider in selecting a forensic accountant to act as expert witness?

What is the specific area of expert evidence required?

Forensic accountancy covers a breadth of financial disputes including divorce, shareholder disputes, fraud, criminal, tax disputes, insurance claims, personal injury, professional negligence, commercial disputes and criminal cases.

Forensic accountants will typically focus in specific areas drawn from their previous experience both as an expert witness and from their wider experience in general practice.

I typically act as expert witness on family matters, business valuation, commercial and shareholder disputes, professional negligence and tax matters.

Will the expert be seen as credible when giving evidence?

The expert’s CV must demonstrate their technical and professional qualifications. Typically, a forensic accountant will be a senior qualified accountant with many years of professional experience, who is a partner in an accountancy firm and also a member of relevant professional bodies such as The Academy of Experts.

At FRP Advisory, when valuing businesses our valuation experts draw on the wider ‘real life’ experience in buying and selling businesses within our group, FRP Corporate Finance. Similarly, when acting as an expert in professional negligence, we draw on our recent experience as partners within accountancy firms advising clients in order to give an opinion on the conduct expected of a reasonably competent tax adviser, auditor and accountant.

Does geography matter?

The expert does not necessarily need to be based near the business or the instructing lawyers. However, it is important that in valuing a business the expert witness must have access to the business owners

What should you consider when instructing an expert witness in a financial dispute?

and accountant which may involve calls and, depending on the size and complexity of the business, could necessitate a visit.

At FRP Advisory, when our experts are valuing a business or advising on a commercial dispute, we will typically issue a detailed information request to the instructing party(ies) in order to facilitate our desk top review. We will then seek input from the business owners to get under the bonnet of the business as well as to draw on our own experience in a business sector. We act on instructions from lawyers across the UK and in certain cases our work can involve international aspects.

Are the expert’s fees proportionate and transparent?

Clearly expert evidence must be cost effective. In most cases the expert witness will be able to give a fee estimate for the project or stages of the project providing sufficient information is available. In all cases, hourly rates of the expert and their team should be provided. Provided the fees are proportionate to the financial dispute, cost should not be the key factor in selecting an expert witness. The expert’s fees must never be contingent on the outcome of a case.

Does the expert have the resource and capacity to take on the instructions?

The expert may work with the support of a wider team or on their own. Clearly, depending on the size of the project and the number of instructions taken, it may be advantageous for the expert to have the support of a wider team. Furthermore, certain aspects of an assignment may be undertaken more cost effectively by team members. However ultimately the expert witness must take full responsibility for their opinion.

Is the expert conflicted or could they be perceived to be conflicted?

It is critical that the expert is not conflicted or could be perceived to be conflicted. The expert should confirm that they are not aware of any conflict, having undertaken appropriate internal checks. Expert advice must be objective and fair and thus it is essential that conflicts –perceived or actual – are avoided.

In conclusion, professional accountants and auditors must demonstrate objectivity in their client relationships. However, this is even more fundamental to the role of the accountant as expert witness. In acting as expert witness the forensic accountant’s duty is to the court. The instructing lawyer, client and barrister are best served by an expert who demonstrates this independence of mind from the point of instruction through to the point (if reached) of giving evidence. q

Forensic accountant and accredited expert witness Fiona Hotston Moore of FRP Advisory explains what is important in appointing an expert witness in a financial matter

Taskforce report echoes pharmacists’ views on drug deaths

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IN JULY the Scottish Drug Deaths Taskforce published its final report following four years of work developing and implementing a programme of actions to tackle the rising number of drug deaths in Scotland.

As the professional leadership body for pharmacy in Scotland and the rest of Great Britain, the Royal Pharmaceutical Society (RPS) engaged with the taskforce as it carried out its work.

Last year, RPS published it report Pharmacy’s role in reducing harm and preventing drugs deaths (Scotland), which contained 14 key recommendations. Many of the recommended actions within the taskforce’s report align with that policy, the RPS said.

Responding to the taskforce’s final report, Laura Wilson, RPS policy and practice lead in Scotland, said: ‘’We welcome the publication of the Scottish Drug Deaths Taskforce final report, which not only highlights the huge amount already achieved by the taskforce, but importantly sets out actions which will need to be taken to ensure that this work is progressed to save lives and reduce harm.

“We are pleased that many of the recommended actions within the report chime with the recommendations set out in our policy statement.

“The taskforce report recognises the important role of community pharmacy and pharmacy teams, and in particular the fact that they often have most contact with individuals who are receiving medication assisted treatment.

“The on-going implementation of the medication assisted treatment standards provides pharmacy teams with a crucial role in supporting and providing treatment to people who use drugs. As pharmacy’s professional leadership body, we want to acknowledge the valuable input these teams have in improving patient access, choice and care in all settings.

“RPS Scotland is delighted to support the continuation of this work as a member of the National Mission Oversight Group and look forward to working with the Scottish Government to make the actions from this final report a reality.”

Dr Carole Hunter, lead pharmacist for alcohol and drug recovery services in NHS

Greater Glasgow and Clyde, has been the RPS representative on the taskforce since its inception.

Carole said of her time on the taskforce: “The Royal Pharmaceutical Society has actively participated in the vitally important work of the taskforce since its inception. It has been a privilege to work alongside a wide range of partners to address the unacceptably high numbers of drug-related deaths. The profession recognises that everyone and every group has a responsibility to work towards reducing drug-related deaths and is committed to taking forward the work of the task force and playing their part in helping to reduce drug-related deaths in Scotland.

“Community pharmacies are at the heart of every community in Scotland and have a key role to play in supporting people who use drugs, people in treatment and recovery, their families and communities.” q

Training essential for experts, experts agree

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IN AN ADJUNCT to his analysis of a case involving an expert being sued by his client, posted on the website of the Expert Witness Institute, medical expert David Stothard stated: “The role of the expert witness in preparing their evidence, writing their report, answering questions arising from it, dealing with another expert witness for the other party and ultimately giving evidence in court, are all governed by rules of court and supporting practice directions and guidance.

“Getting this right is not difficult but nor is getting it wrong, particularly if the instructing party tries to lead you astray. The need to be aware of the legal requirements is a prerequisite for offering oneself as an expert witness and requires continuing and refresher training. It is essential to maintain CPD in this area of your scope of practice.”

That need for continuous training in the legal obligations of experts is recognised by many professional institutions, such as the RICS, ICAEW and InStructE, who offer their own training schemes. Expert Witness

Clinical experts have their own training requirements

bodies such as the Academy of Experts and the Expert Witness Institute also offer a range of training courses, as well as regular conferences and seminars.

The UK’s leading commercial provider of expert witness training and CPD is Bond Solon, offering courses covering all the core areas of expert witness work. The Cardiff University Bond Solon (CUBS) Expert Witness Certificate is the ‘Gold Standard’ for those practicing in the English and Welsh jurisdiction and the University of Aberdeen Bond Solon (UABS) Expert Witness Certificate caters for those operating in Scotland. There are also separate training resources for medical expert witnesses. Also writing on the EWI website, Huw Wilkins, senior associate at Fenwick Elliott, put it succinctly: “Experienced experts will be familiar with the rules and guidance, but should nevertheless refresh their memories regularly. Those undertaking the role of an expert for the first time should review all the relevant guidance so that they understand what is expected of them from the outset.” q

[

THE Academy of Medical Royal Colleges has published guidance on acting as a professional expert or witness. It follows a recommendation in Sir Norman Williams’s Review of Gross Negligence Manslaughter in Healthcare, and has been endorsed by nine healthcare professional bodies on behalf of over 70 healthcare separate professional organisations representing doctors, dentists, nurses, midwives, pharmacists, allied health professionals, optometrists and healthcare scientists.

The guidance reflects good practice set out by other bodies and highlights the legal requirements of witnesses. Significantly, specific original responsibilities for clinicians include a requirement that healthcare professionals who act as expert witnesses should undertake specific training and continuing professional development (CPD) for being an expert witness.

Professor Carrie MacEwen, chair of the Academy of Medical Royal Colleges, said: “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. Having this guidance endorsed by such a range of professional bodies and supported by professional regulators is a significant step.

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

Is the court bothered about accuracy?

by Hayley Cowle of Translate Hive

[ HAVE YOU EVER been tripped up by a minor detail in court? Something not necessarily obvious or seemingly relevant can be the crack a barrister needs to insert his knife and widen the gap.

Many years ago we translated the colour of a car as bronze. The DVLA had it listed as brown. They’re pretty much the same colour aren’t they? The answer, however, bore no relevance to the case, but that didn’t stop the opposing counsel from suggesting our translator had got something wrong. Naturally that lead to him questioning what else he had got wrong. Fortunately the judge was pragmatic and our translators evidence was accepted in full.

This story is demonstrable of how important the little details are. The slightest variation has the ability to lead to a wide divergence in meaning. Ask an American for chips and you’ll receive what we call crisps, not French fries.

The Spanish word ‘ intoxicado ’ is close to the English ‘poisoned’ but due to an infamous yet understandable mistranslation Willie Ramirez was wrongly treated for a drug overdose, doctors taking the word to mean ‘intoxicated’. Sadly he was left quadriplegic resulting in a $71m malpractice settlement.

You would think that in this age of computers and artificial intelligence (AI) it would be simple to get translations – and indeed it’s great if you’re in a foreign restaurant or lost in a city. AI translations are good enough to communicate 99% of the time; however, would you want to risk going to court with that possible 1% on your mind?

Double entendre

We also must consider that many languages have words whose literal translations make little sense in another language. For example the German ‘ Torschlusspanik ’ literally translates to ‘gate-closing panic’. Its actual meaning is the fear of diminishing opportunities as one ages. The Swiss ‘ Maskrosbarn ’ translates directly to ‘dandelion child’ which means someone who has experienced a testing childhood but has turned out well in the end, similar to a dandelion breaking through hard ground. The Japanese ‘ Tamago gata no kao ’ is an endearing term closest to calling someone sweetheart. The literal translation is ‘eggs with eyes’. In these cases the technical translation is completely unhelpful in

understanding the meaning. We often need to use several words in these cases to ensure that the actual meaning is described rather than the literal, in a process known as circumlocution.

It also works the other way, a great example being the Chinese single word for ‘gone with the wind’ describing the instability in chaos including wind. Clever translation if you give a damn.

Translators can debate certain words. In English, the word ‘fair’ is a great example. We know it means treating things equally, yet it is considered untranslatable directly into any other language without using at least one additional word. If a ball falls outside the boundaries of ‘fair’ play it’s not unfair – it’s a foul generally. Google this and you’ll find a whole debate about its translation. If humans have differences of opinion on how to translate a word, then which direction will AI take?

The country in which the language is spoken can also effect its meaning. For example the Spanish ‘ chambear ’ translates to ‘work’ when spoken in Peru, Mexico and Ecuador. However in the Dominican Republic it means ‘to inhale cocaine’. This could lead to a lot of trouble when recruiting!

The positioning of phrases within the sentence can often confuse, especially as many languages configure their structure differently to English. Consider the sentence ‘Snooker table required for man with six legs’. Clearly the table has the six legs but if it’s ambiguous in its native language then the translator must be aware of this or risk mistranslating. The Two Ronnies used this to comedic effect ‘The police wish to interview a man wearing high heels and frilly knickers, but the chief constable said they must wear their normal uniforms.’ Try translating that and keeping the same wit!

AI enhanced translations

We do use AI ourselves for some of our initial work as it lightens the load in bulky texts but it is essential that a human then proofreads and adapts the translation to ensure that the flow of the script, the adaptability and the most accurate meaning is delivered.

AI is great for tourists; but when it comes to translating legal documents, a few pounds spent with a certified human translator can pay huge dividends later – not to mention the peace of mind walking into court. q

Where shall we two meet for the first time – in office, coffee shop or online?

In past issues we have looked at the ins and outs of virtual proceedings for both lawyers and experts. But what about that all-important initial consultation? Here, Legal 500 firm DPP LAW presents the pros and cons of virtual and in-person first meetings

[INITIAL CONSULTATIONS with prospective clients are vital at the beginning of any type of client work. They are the first port of call for you and the client to begin making sense of their issue and offer a fantastic opportunity to unravel the facts and potential pathways.

But those consultations aren’t just the building blocks of future work: they’re also the first opportunity to begin building a positive relationship with the client.

Unfortunately – much like any other business during the pandemic – those consultations went from in-person discussions to virtual meetings. While having access to the technology was a blessing to businesses who could use it to continue work, it had its drawbacks. Legal processes rely on the facts and the literature in place to function; however, they also depend entirely on a human approach. Having the trust of everyone involved is fundamental to proceedings; but how do virtual consultations affect that? There are benefits to both sides, but which one should your workplace opt for when conducting initial consultations?

Virtual consultations

Virtual consultations can be done using a variety of technology, but mostly centre around a video call between you, any relevant colleagues and the prospective client.

The pros

Convenience: Providing potential clients with the option to fit the initial consultation in with their schedules allows them to make more time for the meeting. It can feel rushed or unorganised when a client only has a small amount of time to make it to your office or meeting point. Instead, virtual consultations open up a space to take as much time as they need.

Accessibility: Not everyone has the ability to physically attend an in-person consultation. Whether it’s the result of a lack of childcare, a disability or a financial restriction, in-person consultations aren’t always an option. Offering virtual consultations provides people with a level of accessibility that is vital to ensuring anyone can access legal support and services.

Saving money: Virtual consultations also offer the chance for firms to save some cash. The time it takes to prepare for clients visiting can take time from your hours, costing you money in the long run: not to mention the cost of creating a client-friendly environment to host in-person consultations. Instead, virtual consultations take less preparation time and have a lower cost of the software.

The cons

Lack of connection: While the dodgy internet connection can be difficult to work around, it’s not the only lack of connection that can impact the outcome of an initial consultation. Virtual calls can close off the opportunity to read body language and pick up on pauses that could lead to a deeper understanding. Those nuances are just as important as the main bulk of information and losing them could lead to potential clients going elsewhere if they feel a stronger connection at a competitor’s in-person consultation.

Lower standards of professionalism: It’s no secret that working from home and conducting virtual meetings over the internet can lead people to slack ever so slightly. It might be a bit less effort in appearance or lower energy in the way you speak – or your background may not reflect the seriousness of the conversation. Regardless of how it

impacts you, virtual consultations can lead to a lack of professional standards that are key to instilling confidence and trust in you from the prospective client.

In-person consultations

Initial in-person consultations can be conducted in any environment within which you and your prospective client feel comfortable discussing details: whether that is an office, a quiet coffee shop or even the client’s place of business.

The pros

The opportunity to connect: Initial consultations serve a number of purposes; but creating a strong and positive first impression is often the purpose that will decide if the prospective client will become a paying one. It’s their chance to review the type of person you are, both professionally and personally. It’s also your opportunity to decide if you are the right fit for the person’s needs. Those messages can be shared through simple things such as body language – elements that are missed over virtual consultations.

Engagement: In-person consultations strike an atmosphere that commands attention in a way that isn’t demanding and exhausting. The energy between people discussing a subject can keep everyone engaged – allowing for more productive conversations. By being in-person you avoid virtual issues, such as people messing on their phones, becoming distracted by their kids or experiencing distracting background noise.

Better understanding: The human connection that is earned between people in-person cannot be understated. Engagement and connection don’t just boost trustworthiness, relationships and appreciation of the participants: in-person consultations can also create room to having a better understanding of what is being discussed, and therefore the goals you decide upon and the path to achieving them is built between all parties, is more applicable and has less of a chance of being changed further down the line of proceedings.

The cons

Cancellations: While in-person consultations have their benefits, they are harder to attend than a virtual version. You could find that your time is wasted more often if you stick to in-person consultations, as people no longer have the time to travel and attend. Compared to opening a laptop and jumping on a call in under five minutes, in-person consultations aren’t everyone’s cup of tea and can lead to you sitting alone in your office, waiting for them to never turn up.

Disruption: Technical disruption is common in virtual consultations; however, with initial in-person consultations, disruptions come from the participants themselves. Prospective clients often become distracted by small talk and off-topic chat that can lead the discussion off course, taking time away from important plans. Those types of conversations are more common when in-person, due to both parties getting used to the other; however, it can help to build rapport and trust.

Accessibility: Initial in-person consultations present a difficulty to people who may find it harder to access transport, childcare or financial budgets to travel any kind of distance to the meeting place. Your place of work may also have accessibility issues, and the times that you’re available could conflict with care as a provider or a receiver. Whichever way it goes, accessibility is a huge issue and in-person consultations can stand in the way of people trying to access legal support. q

Court of Appeal rejects challenge to Solent development

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CRITICISM OF NATURAL ENGLAND’S nutrient neutrality advice to a local planning authority (LPA) in the Solent area has been rejected by the Court of Appeal. The court found that the LPA’s planning permission, which relied on the advice, was lawfully granted and successfully withstood the legal challenge.

In the case of Wyatt v Fareham BC the residents claimed that the LPA’s decision, which relied on Natural England’s methodology, did not comply with the Habitats Regulations and did not sufficiently protect internationallyimportant wildlife sites.

The case concerned a planning application for an eight unit development in the catchment area of the Solent and Southampton Water Special Protection Area (SPA). As part of the planning process Fareham Council was required to undertake an ‘appropriate assessment’ to ensure that the development would not adversely affect the integrity of the SPA.

The planning application was opposed by a residents group, Brook Avenue Residents Against Development (BARAD), chaired by Mr Wyatt. The group was given leave to appeal against Mr Justice Jay’s judgment in the High Court in 2021. The Court of

Appeal dismissed the case on all grounds on 15 July and concluded that the planning permission had been lawfully granted.

In a statement Natural England stated: “This positive outcome at the Court of Appeal should give all those involved confidence in the approach and methodology that Natural England has proposed to help LPAs to address nutrient impacts from new development. We look forward to continuing to work with LPAs and developers to bring forward nature-based solutions which deliver broader benefits for people and nature, in addition to mitigating water quality impacts from new development.”

Cllr Nick Walker, chairman of Fareham Borough Council’s planning committee, said: “As a council, we take our responsibility to safeguard The Solent, which has international importance for wildlife, extremely seriously.

“We have gone to great lengths to develop a strategy that protects the wildlife habitats in The Solent, whilst enabling the homes to be built that the government requires the borough to accommodate.

“The council’s approach to decision making has now been tested on two different occasions by two different courts and found to be sound.” q

New protection agency sets out business plan

[IN JUNE the Office for Environmental Protection (OEP) published its Corporate Plan, setting out a work programme for its first operational year. The OEP intends to prioritise work on nature recovery and the quality of air, water, soil and marine environments.

At the same time it published its strategy and enforcement policy, which was finalised following a consultation exercise earlier this year. In it the OEP sets out how it will carry out its work to protect and improve the environment by holding the UK Government, Northern Ireland Executive and public authorities to account.

Dame Glenys Stacey, chair of the OEP, said: “I am delighted to present the OEP’s first Corporate Plan. We are a new organisation, with a broad remit and powerful tools. The environment and people’s health and wellbeing will be best served when we use these to their greatest effect.

“In this plan, we set out our priorities, which centre around those aspects of the environment we consider to be in pressing need. We want our work to drive positive change on critical environmental issues – nature depletion and the quality of soils, air, water and marine environments. We intend to use our full range of powers to stimulate improvement in these areas.”

The OEP was formed in November last year following the passing of the Environment Act 2021 by Parliament – an event welcomed by many in the environmental sector.

Environmental consultancy Richard Green Ecology declared at the

time: “An amazing breakthrough on legislation that will protect and enhance our environment for future generations has now passed into UK law!”

The clean-up of the country’s air, restoration of natural habitats, increase in biodiversity, reduction of waste and better use of our resources are now new environmental targets laid out by the OEP. q

We love our trees: but who is responsible for them?

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TREES AND WOODLAND are emotive issues for the UK. There is a strong emotional attachment to the trees in our locality – possibly deriving from the fact that, as the first highly-industrialised country, our forests were among the first to be destroyed for industrial and intensive urban development.

So, when trees are removed there is often a strong local backlash. The long-running campaign to stop the felling of thousands of trees in Sheffield, which resulted in suspended sentences for protesters, is even the subject of a feature film.

But for most people their experience of issues relating to trees, if any, is limited to individual trees: who is responsible for their upkeep and their safety, when are trees protected and when can they be pruned or felled.

On the issue of when trees can be pruned and when they are protected, the Arboricultural Association (ARB) has this to say, in its Guide to Trees and the Law: “There are a number of ways that trees can be protected by law within the UK. These include Tree Preservation Orders, Conservation Areas, the Felling Licence system, Restrictive Covenants, and planning conditions within the planning system. It is important to find out from your local council whether any legal restrictions apply before you undertake work on your trees as you may be liable to prosecution if permission is not first obtained.”

When the trees are home to certain species of wildlife, extra regulation is in place.

The ARB guide goes on to address the situation where trees may pose a danger to the public.

“The safety of trees is nearly always the responsibility of the owner of the land on which they grow; but there are some exceptions, such as when a rental agreement requires the tenants of a property to manage the trees.

“The tree owner or manager has a ‘common law’ duty of care to: ‘take reasonable care to avoid acts or omissions which they can reasonably foresee would be likely to injure their neighbour’.

“The tree owner also has a duty under the Occupiers Liability Acts to take reasonable steps to ensure visitors or trespassers on their land are safe. In practice this means that if a tree fails and causes damage to a person or property then the tree owner may be liable.

“The chances of making a claim, however, would usually depend on whether the owner had been negligent; for example, if the tree was obviously unsafe through damage or disease, and they failed to act to prevent the incident occurring. Therefore if you own trees it is sensible to have them regularly inspected by a competent arboriculturist.” q

The value of the informed expert is inestimable

Mark Chester reflects on some cases where expertise in his field of arboriculture has proved invaluable to the outcome

[

THE ROLE OF THE EXPERT WITNESS in advising on claims is a key element. Having an informed guide to give counsel on the merits of a case can ensure that wise decisions are taken either to pursue or defend a claim.

It may come as a surprise that arboriculture, my own specialism, is unregulated. During my two decades as an arboricultural consultant I have encountered evidence, sometimes quite limited, being given undue merit, as those instructing are unaware of the limitations of the ‘expert’.

When I am instructed to review a case, a starting point is to explore existing evidence and its merit. I have found the term ‘expert’ being applied widely to individuals whose credentials are not. In one case, where a tree had broken and caused a road accident, the tree owner strongly defended their position and the condition of the tree, based on the opinion of their ‘tree expert’, who suggested that inclement weather was the reason for the failure. It was only when I explored further and found out that the inclement weather was not in that locality, and the ‘expert’ was the individual who mowed the lawns and trimmed the trees, that the claim was recognised as having merit.

In another case, the claimant’s expert cited their degree as their most senior credential. It was, but the subject was not related to the tree-related claim, and thus not relevant. Earlier this year I was asked to comment on the merits of a claim to replace a damaged conifer hedge. The insurance company was concerned about the value of the claim, which seemed high. When I explored I was advised that part of the cost was due to the expense of importing the replacement conifers – Leyland cypress – from the EU. That is often the case for plants not grown in the UK; however, the Leyland cypress was first propagated on an estate in Powys, Wales, owned by the Leyland family. It is widely grown in the UK and does not carry a premium from being imported.

For one claim the claimant cited the advice of their landscape specialist after trees had been excessively pruned during work for power line clearance. The proposed works included digging out stumps of damaged trees, planting substantial replacements and regrading the site. As I appraised the representations made by the claimant it soon became evident that their specialist was a digger driver used to site clearance work and the methodology for reinstating the site was disproportionate to the damage.

In 2021 a case involving a neighbour dispute over a fruit tree resulted in one party having a bill for £250,000 in legal costs and compensation. I was asked at the time about the case, and how it could have happened: indeed, I appeared on the Jeremy Vine Show to share some thoughts. A reflection is that it is important to provide informed, impartial counsel to the party instructing, or to both parties.

As an accredited expert witness my duty is to the courts and to provide the instructing party with clear advice. I often need to spend time with an instruction identifying what the key issues are, among what I call ‘the noise’. There is usually a degree of emotion involved and it is important to put that to one side; to remain calm.

I remember one expert witness, who has operated within arboriculture, sharing at a seminar that they had tried to persuade the jury on a case of the merits of their client’s claim. While I understand that view, I recognise that it is the role of the client’s legal team. There are few feelings to compare with a judge dismissing the merits of one’s opinion when summing up. I have to remember that, whatever the outcome, my role is to ensure that the decision-makers are informed of my own observations. Whether or not they agree with my conclusions is not my responsibility.

There can also be a tendency by the expert to provide extensive commentary and pages of text detailing a case. When I was being trained by the Bond Solon team for the Cardiff University Expert Witness accreditation – which I gained in 2012 – Nick Deal, one of the trainers, shared that, when writing the report, remember that the judge has to read it: a succinct account is often appreciated.

Summing up at the conclusion of a recent hearing, the barrister for the party instructing me observed to his client: “In Mr Chester you have a credible expert, and an excellent report. Mr Chester has done a good job.” Regardless of the outcome, that for me is a job well done.

A loss adjustor commented: “…exactly what I need”. And I was able to reassure one client, seeking to resolve a neighbour dispute concerning a tree, that the CPR Part 35 expert witness report would be independent and impartial, and could be relied on by both parties. My role is to assess the evidence, without fear or favour.

My own credentials? A degree in Amenity Horticulture, Chartered Arboriculturist, Fellow of the Arboricultural Association and Cardiff University Expert Witness.

And a reflection from one instructing party, for whom I was initially simply the ‘tree man’, on seeing my report: “You know your stuff, don’t you?” q

Safety concerns:

are e-scooters and similar

devices becoming a new major fire hazard?

By Anthony Murray, Fire Investigation Specialist at Strange Strange & Gardner

[FIRE SAFETY LEGISLATION has been developed in response to several well-publicised risk factors, such as foam-filled furniture and white goods. In recent times, a rise in the popularity of electric vehicles powered by lithium-ion batteries – such as hoverboards, e-bikes and e-scooters – has also led to an increase in the risk of fires.

Strange Strange & Gardner has observed an increase in the number of lithium-ion battery fires resulting in substantial property losses and personal injuries. The causes of these cases are often either in-service damage, manufacturing defects or a failure on the part of the user to follow the manufacturer's instructions with regard to safe charging practices.

In our view, standards are required for the construction of e-scooters, as well as their chargers and batteries, and users should receive clear instructions on how to safely charge and store their e-vehicles.

In the event that such preventative measures are not taken, we can expect to see the number of fire incidents associated with e-vehicles continue to increase as they become more prevalent.

The investigation of a suspected battery fire requires a thorough investigation methodology, as well as expertise at the scene of the fire.

The team at SS&G conducts investigations into all types of battery fires and explosions. We communicate our conclusions in an informative and approachable manner utilising our expertise at the fire scene.

Quality is a key factor in oil price, as the expert witness will aver

Expert witnesses in oil sales and purchase contract disputes are often required to opine on the market values of various crude oils and oil products. Key elements in such determinations are usually the commodity benchmark price –for example, Brent Crude Oil or Euro 95 Octane Gasoline – the location, the timing of oil pricing under the contract and the oil quality relative to that of the benchmark commodity. Experts from Consilience Energy Advisory Group Ltd have written about some of those elements in previous issues. In this article the firm’s Senior Associate Ben Holt considers oil quality.

[OVER THE PAST FEW YEARS, the importance of oil quality on its value has been demonstrated clearly. In 2019 some Russian crude cargoes were contaminated with organic chlorides. Just tens of parts per million (ppm) were enough to cause discounts of $10-15 per barrel (bbl).

More latterly, the tightened limit on sulphur in marine fuel to 0.5%, introduced globally in 2020, has led to an increase in the premium for low-sulphur fuel oil over high-sulphur material from traditional levels of $10-20/tonne to recently over $100/tonne.

Now, the demand for crude oil in Europe to replace Russian supply has led to some West African grades trading at more than $10/bbl more than the previous norm because of their substitutability for Russian Urals crude. Diesel fuel, also short due to lost Russian supply, has increased by $40/bbl more than previous normal premia to crude oil.

Oil products are made by blending to meet a range of quality specifications. The market price applies to on-specification oil, but it is not always possible for refiners and blenders to exactly meet all the specifications, so that they ‘give away’ better quality, which has an impact on value. Crude oil and other refinery feedstocks, on the other hand, are not made to comply with specifications, so long as they are ‘merchantable’. Their qualities can vary considerably.

The refined product contents of different grades of crude oil (wt%)

each product (kerosene, diesel, naphtha etc) yielded from the crude in question – which vary considerably among crude oils, as shown in the chart – and the market prices or values of each product.

So how are differences in quality reflected in the price of oil? Products such as gasoline (petrol), diesel and kerosene are sold in bulk in Europe in tonnes (weight), but ultimately at the consumer level in litres (volume). So variations in density are reflected in proportionate increases or reductions in price because lower density means more volume to sell at the retail pump for the same weight purchased.

Density is measured in the oil industry using ‘API gravity’. Frequently, variations in API gravity relative to the specified norm are reflected in pre-arranged adjustments to the contract price of the crude oil. Generally, and with some exceptions, crude oil tends to be more valuable as its API gravity increases, up to a certain point. Above around 35º API, the value can be impaired by an associated increase in the naphtha content.

The sulphur content is another parameter often associated with price escalation in crude oil contracts. Such adjustments work reasonably over narrow quality ranges but can be problematic for wider variations.

The values of crude oils and other feedstocks can be more rigorously compared using the total value of the refined products that can be made from the crude. That requires data about the proportions of

However, each refinery has different equipment, extracting more or less of each product. Indeed, refineries in different regions were designed to make different proportions of products based on local demand. Furthermore, the value of an oil product to a refinery can change, depending upon whether it is used locally or must be exported and attract domestic or export tax.

Experts valuing crude oils whose traded market prices are not transparent need to exercise judgement and make broad assumptions about the type of refinery configuration that is typical and competitive enough to set market prices in a region.

We have seen how product yields are not alone in affecting the value of crude oil: the quality of the products yielded, the crude’s acidity, contaminants and handling properties such as viscosity are also significant; and then the politics, logistics and efficiency of the export facilities have a further impact on price. q

• Consilience can cover all aspects of valuation of crude oil and oil products. Find out more at ceag.org/senior-associates. It’s new software product, Revenue Analysis Apportionment and Hedging (RAAH) was launched in May 2022: ceag.org/shop/web-apps/oil-fieldproduction-and-revenue/

Offshore wind: developments pose unique problems for experts

Mamoon Alyah PE CEng IRMCert of CEERISK Consulting Ltd explains the potential for litigation in a sea of uncertainty

[ THE FIRST OFFSHORE WIND FARM was built in 1991, with a generating capacity of 5 megawatts (MW). Today’s largest windfarm – Hornsea One, off the shore of Hull in the UK – boasts a generating capacity of 1.2 gigawatts (GW) from 174 wind turbines.

Technology has improved greatly in the past 30 years, as has our experience in investigating failure incidents in offshore wind farms. Though failures of subsea cables are the costliest, the cost of damage caused by failures of other equipment in an offshore farm can climb quickly once access and accommodation costs are added in.

When investigating failures in offshore farms, a number of factors should be considered: they include loss of income, the high cost of incident investigation and the causes of failure.

Failure of equipment used to connect generated power to the grid leads in most cases to turbine shut down and loss of income, as generated power can no longer be exported. That shut down can add up a significant amount of the overall loss caused by the failure.

The location of offshore wind farms increases access and accommodation costs. Engineers from the original equipment manufacturer, independent experts and damage inspectors must be brought to the failure site where they need to be housed for the duration of investigation. In addition to the cost of special vessels, the overall logistical cost of investigations becomes significant.

The causes of failure fall into four categories: design failure, manufacturing defects, incorrect installation and environmental conditions.

Design failure occurs when poor design interacts with the harsh offshore conditions, causing failure of equipment, subsea cables, terminations, joints and control systems, including power conversion equipment.

Manufacturing defects during the manufacture of components result in latent damage, such as voids in the insulation, loose solder joints, improper adhesion of layers in busbar systems, improper spacing and others.

Installation failures result from stress on components, arising from incorrect connections, improper coiling of cables, location errors, improper spacing and failure to support components in place.

Design defects and manufacturing defects raise concerns of serial losses in systems that may have not failed. If all components are designed or manufactured in the same inadequate way, some may fail while others continue to operate with the latent failure for a limited time.

Offshore failure incidents require experts with not only the necessary subject expertise, but also the knowledge and experience of the special conditions in offshore farms. That is further complicated by the fact that, before incident investigators can go offshore they must have access and safety qualifications.

As technologies continue to evolve and be deployed further away from shore, there remains a significant number of ‘unknown unknowns’ that we are only finding out about after a significant incident occurs. q

• Mamoon Alyah is the Managing Director and Principal Engineer at CEERISK Consulting Limited. He serves as an expert on matters related to construction disputes and operational failure incidents in renewable energy power plants around the world. CEERISK is an engineering consultancy with experts in multiple disciplines providing services to the insurance and legal industries.

Translations and Interpreting for the Legal Profession since 1997. Specialists in Personal Injury and Clinical Negligence. www.abc-translations.co.uk

DentoLegal Ltd – Gary M Simon

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

DRC Forensics Limited

EDRC Forensics Limited offers the complete range of forensic accounting & litigation support: • Fraud • Money laundering

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Dr Paul Baskerville MA DM FRCS

Expert

Single Joint

CEERISK

Mr Roger Emmott CEng BSc(Hons) MSc/MBA MA FCMI FIC Steel and iron ore expert with international arbitration and cross-examination experience in complex disputes

• Pricing • Contractual matters • Valuations T: 07974 351704 E: roger@rogeremmottassociates.com www.rogeremmottassociates.com

FHDI - Kathryn Thorndycraft-Pope

Professor Frank Chinegwundoh MBE

Consultant Urological Surgeon specialising in Personal Injury and Medical Negligence cases on behalf of either claimant or defendant or as a Single Joint Expert. www.urologyconsultant.co.uk

D & HB Associates Ltd

Experts in Road Traffic Offences

Stolen vehicle examination and identification

Statement Taking www.dandhb.com

Dr Lars Davidsson MRCPsych MEWI

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

Chris Dawson MS FRCS LLDip

Consultant Urologist with over 18 years experience of medico legal report writing and expert witness work in personal injury and clinical negligence cases. www.chrisdawson.org.uk

Mr Kim Hakin FRCS FRCOphth

Consultant Ophthalmic Surgeon and Expert Witness on ophthalmological matters

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.kimhakin.com

Laird Assessors

The UK’s leading independent automotive expert witness firm supporting claimant, defendant and criminal solicitors. From instruction to court. www.laird-assessors.com

Kulvinder Lall Consultant Cardiothoracic Surgeon Instructions taken in cases relating to cardiac and thoracic surgery, including aspects relating to surgical care and those following trauma to the structures of the chest. www.kulvinderlall.com

Mr Chris Makin

• Chartered Accountant • Accredited Civil Mediator

Accredited Expert Determiner www.chrismakin.co.uk

Martyn Slyper Consultancy

Expert Witness in Assistive Technology

• Personal Injury • Clinical Negligence • Industrial Injury E: ms@martynslyperconsultancy.co.uk www.martynslyperconsultancy.co.uk

Professor Christopher Raine MBE

Specialist in paediatric and adult otology

• Medical negligence • Personal injury cases involving noise induced hearing loss. www.profchrisraine.co.uk

Mr Sameer Singh MBBS BSc

FRCS Orth

Consultant Orthopaedic Surgeon • All aspects of trauma – soft tissue and bone injuries • Upper and lower limb disorders and injuries • Whiplash injuries

Performs claimant and defence cases Clinic locations – London, Milton Keynes and Bedford

www.orthopaedicexpertwitness.net

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

Mr Bernard Speculand MDS FDS FFD FRACDS (OMS)

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

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

Target Psychology Ltd

Public & Private Law Proceedings

Immigration Proceedings

Pre-Proceedings

Criminal Proceedings

Court of Protection Proceedings

Personal Injury and Clinical Negligence www.targetpsychology.co.uk

Myles J O Taylor BA(Oxon) PhD FRCOG

Expert witness specialising in: • General obstetrics & gynaecology • Fetal Medicine • Multiple pregnancy – including twin to twin transfusion syndrome, intrapartum care and general gynaecology. www.mylestaylor.co.uk

Vincent Theobald-Vega

Health and Safety expert • Asbestos management & removal

Construction design and management

Laboratories

Biological & chemical safety and much more. www.safety4hed.co.uk

www.yourexpertwitness.co.uk

Dr Elizabeth J. Soilleux MA MB BChir PhD FRCPath PGDipMedEd

MEDICAL NOTES

[BARELY TWO DAYS before the momentous events that turned the country’s public life upside down there was the small matter of the appointment of a new Prime Minister. Liz Truss was not short of advice on what she should prioritise in her first days in the job – and the medical professions were at the forefront in offering that advice. The BMA was quick out of the blocks in urging the PM to take avoiding action to prevent what is already a ‘once-in-ageneration crisis’ from becoming a catastrophe as winter sets in and the health service buckles under the weight of cold weather illnesses. It comes as no surprise that fixing that crisis involves addressing the issue of doctors’ own pensions.

Dentists, meanwhile, have called on Ms Truss to deal with the crisis in access to NHS dental care. The contract dentists operate under is ‘discredited’, the BDA says and requires a substantial increase in funding. What is perhaps surprising is the fact that, despite the increasing demoralisation of the medical professions, there is not an avalanche of negligence claims.

• All of these stresses come on the back of the sustained pressures on the NHS caused by COVID. The GMC – the body that regulates doctors as opposed to representing them – had a warning of its own that the continued burnout, particularly of trainees, threatened the wellbeing of both doctors and their patients. Put simply, the medical profession is exhausted.

• Among patients the two groups most affected by the COVID pandemic were the young and old: again, no surprise there. Two reports highlight the devastating effect of a combination of increased stress on the individual and the closedown of facilities during the pandemic. Self-harm among young people in particular spiralled in response to the stress of events, while dementia services struggled to cope, with staff absences and clinics being curtailed.

• The most common procedure in the NHS is cataract surgery, with nearly half-a-million operations carried out a year – a fifth more than six years ago. Those operations are increasingly being carried out by the independent sector, or ISPs. The COVID pandemic saw a dramatic surge in that number, as NHS resources were redeployed to both cope with COVID and cover services stretched by staff shortages. Although the proportion being carried out by ISPs fell back as the effects of COVID mitigated, it remains higher than pre-pandemic levels.

• On the high street, the regulation of eye care is being modernised. The Opticians Act has been in force since 1989 and much has changed since then. Optometry has become computerised and involves much more detailed examination of the eye itself. In contrast to much reform in the healthcare sector, the proposed overhaul of the Act has drawn support from much of the sector. The College of Optometrists has consulted its membership and has formulated its own recommendations.

• A great deal of how we see ourselves revolves around our faces. The face has been described as ‘the seat of recognition’ for our selves and any injury can have psychological effects as well as the visible. Those effects can be severe, resulting in PTSD or dysmorphia. For that reason, any personal injury claim for a facial trauma will usually involve a report from a psychological expert to aid the courts on the level of compensation.

• The body we least expect to be subject to a claim for unfairly dismissing someone from their job is the CQC, the body we trust to ensure good practice throughout the healthcare sector. It came as something of a shock to many, therefore, to read of the ordeal of Shyam Kumar. Fortunately, justice has prevailed and the CQC has learned a salutary lesson. q

Post-COVID burnout threatens doctors and patients alike, GMC finds

[POST-PANDEMIC NHS BACKLOGS threaten the health and wellbeing of thousands of doctors, as well as their patients, the General Medical Council (GMC) has warned in its training report. The regulator’s annual national training survey, completed by more than 67,000 UK doctors – all either trainees or trainers – reveals a continuing worsening trend in answers to questions about workload and burnout.

While most trainees rated the quality of their training highly, and nine in 10 trainers said they enjoyed their roles, the risk of burnout is now at its worst since it was first tracked in 2018. The GMC is calling for clinicians’ wellbeing and training to be at the heart of workforce planning as health services continue their post-pandemic recovery.

According to the GMC: “Last year’s report showed how the COVID-19 pandemic had reversed previous improvements, prompting a warning by the regulator that it should be a blip rather than part of a ‘new normal’. But data in this year’s report shows the situation has deteriorated further, as backlogs in UK health services take a toll on doctors.”

The survey found that two-thirds of trainee doctors said they ‘always’ or ‘often’ felt worn out at the end of a working day, while nearly half (44%) were regularly ‘exhausted in the morning at the thought of another day at work’.

Analysis of the results by the GMC shows that 63% of trainees and 52% of doctors who work as trainers are at moderate or high risk of burnout: the highest levels since the questions were introduced to the survey.

GMC chief executive Charlie Massey commented: “These results show the extent to which our health services are struggling to recover from the impact of the pandemic, and that NHS backlogs are not just a risk to patients, but also to the health and wellbeing of doctors.

“The danger now is that increased workloads, and the stress and burnout risk that go with them, may become permanent. We’re sharing our data with employers and postgraduate training leads so they can target areas of concern and promote good practice.

“Support for trainees and trainers must be at the heart of future workforce policy decisions, or we risk creating a vicious circle that, ultimately, will adversely affect patients.”

Trainees in all medical specialties showed an increased risk of burnout compared to last year. The highest rate was in emergency medicine, with 32% of doctors in training at high risk of burnout: up from 21% in 2021.

Despite the pressures, around three-quarters of trainees (74%) were satisfied with the quality of their workplace training, describing the teaching as either ‘good’ or ‘very good’. Trainers were also positive, with 90% saying their enjoyed the role, although less than half (45%) said they were always able to use the time allocated for that purpose.

Charlie Massey added: “The wake of disruption left by the pandemic is inevitable and will be felt for years to come. Despite those pressures, the quality of training across the UK remains high, which is thanks to the hard work and commitment of tens of thousands of trainers and trainees.” q

BMA urges new PM to prioritise addressing NHS crisis

[

THE NEW PRIME MINISTER must put the NHS at the very top of her priority list to avoid a once-in-a-generation crisis snowballing out of control this winter, doctors’ union the British Medical Association (BMA) has warned.

In a letter to Liz Truss, the BMA’s chair of council Professor Philip Banfield set out the extreme pressures facing the health service –record waiting times, overwhelmed community-based services and plummeting staff numbers – and why it’s more important than ever for the government to tackle them.

He said: “This is a workforce that stood up to the challenge of the pandemic, that went above and beyond to continue caring for patients and to deliver the lifesaving vaccination programme; but is now being taken entirely for granted by the government.”

He told Ms Truss: “You have an opportunity to right that wrong.”

Professor Banfield has encouraged the new Prime Minister ‘…not to see this problem from Whitehall or through sanitised visits’, but through the eyes of NHS staff, who because of the pressures are ‘…taking the unenviable decisions over which patient to prioritise and which to leave waiting in distress’.

The letter also explains that reconsidering the recent pay award and tackling punitive pension taxation is crucial to boosting staff morale and retaining talented healthcare professionals – especially as the country faces a crippling cost-of-living crisis.

Professor Banfield warned of the pressure in primary care, writing that: “GPs and their teams are bearing the brunt of excessive waiting times while many are themselves overwhelmed with demand.”

As of June 2022, more than 130,000 posts in secondary care in England were vacant – the largest number of unfilled vacancies since June 2018. That is an increase of nearly 25% over one quarter, clearly

demonstrating the effect that NHS pressures are having on staff retention.

Professor Banfield added: “We acknowledged your commitment to ‘sort out’ the problems with NHS pensions which are driving senior doctors from the NHS in their droves when we need them most.

“The scale of this problem cannot be underestimated; however, suspending ‘retire and return’ restrictions is just one small part of the problem and will have minimal impact on the overall numbers of doctors leaving as it will only help a small minority of doctors who hold mental health officer status. It will not address the problems faced by GPs or the majority of consultants. To suggest otherwise and that this is the solution would be disingenuous.” q

‘Whistleblower’ surgeon wins case

[ A DOCTOR who claimed he was sacked for whistleblowing has had his claim for unfair dismissal against the Care Quality Commission (CQC) upheld by an employment tribunal.

Mr Shyam Kumar is an orthopaedic surgeon who was seconded from his post at Morecambe Bay NHS Trust to work parttime for the CQC as a special adviser on hospital inspections, but was ‘disengaged’ from the role in 2019. Manchester Employment Tribunal found that he was unfairly dismissed.

He said: “I was perceived as a troublemaker within the CQC, or as a thorn in their side. That's what I believe. And they just ignored it. And finally, people got involved.

“The whole energy of a few individuals in the CQC was spent on gunning me down, rather than focusing on improvement to patient safety and exerting the regulatory duties.”

The tribunal's judgement said: “It is very clear that the emails and concerns raised by Mr Kumar had a material impact on the decision to disengage him.”

The CQC said: “We accept the tribunal findings and have learnt from this case. We have already improved many of our processes and will continue to review these based on the findings to ensure we make any further necessary changes.”

Mr Kumar was supported in his case by the BMA. Professor Philip Banfield, BMA council chair, said: “It is absolutely paramount that doctors are able to raise safety concerns without fear of recrimination or backlash from employers.

“This judgment clearly underlines the fundamental need to protect whistleblowers and is a significant legal victory that the BMA is proud to have supported. That such a case happened within the very organisation that is meant to safeguard standards within the NHS and social care is incredibly concerning indeed and the CQC must answer serious questions about its culture and the policies that allowed this to happen.

“The BMA is clear that the NHS and the whole health and care system must have an open, learning culture where doctors and their colleagues can be confident in speaking out when they see patient safety at risk, and we are committed to

safeguarding our members’ whistleblowing rights wherever they work. Rather than punishing those who bravely speak up, the system should be supporting them, so that steps can be taken to improve safety for both staff and patients.” q

Care firm fined following resident’s death

[A CARE PROVIDER has been ordered to pay £1,527,170 at Crawley Magistrates’ Court after it failed to meet a resident’s nutritional and hydration needs and protect them from avoidable harm. Care UK Community Partnerships Ltd was fined £1,500,000 and was also ordered to pay a £170 victim surcharge and £27,000 costs to the Care Quality Commission (CQC) which brought the prosecution.

Care UK Community Partnerships Ltd operates a number of care homes in England, including Mill View in East Grinstead. Mill View is a care home providing accommodation with personal and nursing care for up to 70 people.

In April 2018 an 86-year-old male resident – referred to as MC – was admitted to Mill View after being discharged from East Surrey Hospital. While at the hospital he was referred to a speech and language therapist who advised he was at risk of choking and needed a special diet of soft foods.

On 30 April 2018 a choking risk assessment was carried out by a Care UK team leader. It did not identify any choking risks.

On 16 May 2018 a Care UK regional nurse reviewed MC’s care plans and amended the eating and drinking plan to state that he ‘eats a normal diet and drinks normal fluids’. A choking risk assessment was completed and, again, no choking risks were identified. Four days later the resident was having lunch at the dining room table when he started to choke and became unresponsive. A post-mortem found he had eaten large pieces of meat and concluded the cause of death was choking on food.

It was found that staff did not understand how to prepare the correct diet or to safely support the resident to eat and drink. The service also failed to maintain accurate care records and the advice of the speech and language therapist was not fully incorporated into the resident’s care plans and risk assessments. He was therefore given unsafe and inappropriate foods from the time of his admission until his death.

Care UK Community Partnerships Ltd pleaded guilty to failing to provide safe care and treatment to MC, resulting in him being exposed to significant risk of harm which ultimately led to his death.

Hazel Roberts, CQC’s head of inspection for adult social care, said: “Our sympathies are with MC’s family following his tragically needless death. He had the right to expect to be kept safe while living in Mill View and receiving care from the staff there; but in this case the provider, Care UK Community Partnerships Ltd, failed in its legal duty to protect him from being exposed to significant harm.

“The majority of care providers do an excellent job; however, when a provider puts people in its care at risk of harm, we will take action to hold them to account and to protect people. I hope the outcome of this prosecution reminds care providers of their duty to assess and manage all risks to ensure people are kept safe.” q

First year of GP indemnity scheme confirms relative rarity of claims

[ ANALYSIS OF THE DATA from the first year of the indemnity scheme for general practice has identified that quicker and more accurate diagnosis, and improved prescribing processes, could result in better patient outcomes. That was the conclusion of a report from NHS Resolution. The report provides a comprehensive review of the first year of the Clinical Negligence Scheme for General Practice (CNSGP). CNSGP is managed by NHS Resolution and covers the NHS work of general practice in England for incidents occurring after 1 April 2019.

Although 90% of patient contact in the NHS is via primary care, the number of claims is proportionally very low. Healthcare professionals in general practice provide a very good service, despite difficult circumstances and rising numbers of patients with comorbidities. However, any incident of harm experienced by patients is important and the NHS should strive to make improvements wherever they can.

The analysis also includes practical safety recommendations which aim to improve patient safety and prevent harm, thereby reducing the number and cost of harm events in general practice. The eight recommendations highlight the need for improved communication across primary and secondary care. They also recommend development of digital tools across the healthcare system, for example a ‘track and trigger’ system assessment tool to assist earlier identification of deteriorating patients.

A total of 401 cases were reported to the CNSGP scheme between 1 April 2019 and 31 March 2020, and both open and closed cases were evaluated. Clinical negligence claims associated with general practice accounted for 3.4% of the new

claims NHS Resolution received in that year.

Cancer, sepsis and cardiac are the three most common case notifications. In nearly half of the cases the cause was listed as delay or omission of diagnosis, and almost a fifth was down to medication errors. The report also shows the need to improve healthcare provided in prisons.

Many of the claims relate to systems and processes which influence delivery of effective care in general practice. NHS Resolution’s chief executive Helen Vernon explained: “The report aims to understand why harm occurs in general practice and share that knowledge with primary care colleagues, so healthcare can be improved, reducing opportunities for incidents to arise.

“The vast majority of patient consultations happen within primary care and overall the care is excellent. The number of claims that have come through in the first year is a very small proportion of the total number of claims we received in the period the report covers. However, behind each number there is a patient who has experienced harm. It is paramount that healthcare providers understand what has gone wrong and are open and transparent with patients at the time the incident occurs.”

Professor Martin Marshall, council chair of the Royal College of General Practitioners commented: “The Royal College of General Practitioners welcomes this report as a valuable learning opportunity. The themes identified, including missed or delayed diagnoses and medication errors, are not challenges unique to general practice, but ones which resonate across the healthcare system.” q

CQC publishes update on controlled drugs

[

THIS YEAR’S ANNUAL UPDATE by the Care Quality Commission (CQC) on the safe management and use of controlled drugs (CDs) was published on 5 July. It draws on prescribing data, feedback from controlled drug local intelligence networks and CQC’s wider inspection and regulatory work.

The report shares important insight on the use of controlled drugs in health and adult social care services, to help people working with controlled drugs strengthen the arrangements for their safe management and use.

“In the last year,” the CQC said, “we have heard of innovative work and good practice being shared by local intelligence networks, as well as a notable rise in non-medical prescribing for all professional groups.”

They also noted that the shift towards integration of local health and care services presents an opportunity for the development of

more effective oversight of CDs across a wider range of providers and stakeholders in a locality. However, there are still some key concerns, for example:

• Poor governance of CDs – relating to issues such as balance

• checks, incident reporting and secure storage

• Shared care between independent and NHS providers – including

• the safe and effective monitoring of people and their medicines

The CQC’s recommendations encourage providers and commissioners to use the available data sources and tools to better understand prescribing risks and trends with controlled drugs in their local area.

Once those risks and issues are identified, local collaboration can help to create action plans and interventions to promote safer care for people. q

Explants: analysis of failures can lead to improvements all round

by Jason Wilson of Medical Explants Ltd

[IN RECENT YEARS surgery has benefited from some technological breakthroughs, with the introduction of successive medical devices and procedures. Over time some of these innovative theoretical breakthroughs saw questionable durability in humans; and unfortunately some have led to catastrophic failure – such as with the case of metalon-metal hips and certain breast implants.

Explanted medical devices – or used medical devices (UMDs) – are generally disposed of in the theatre bin, returned to the manufacturer or – in far fewer numbers – analysed by independent centres, usually at the behest of concerned surgeons or as a direct result of becoming part of a litigation case. The concern of course is that some devices may be disposed of prior to any subsequent litigation; then the device evidence is lost and the surgery itself receives a greater level of focus, which can waste time and effort.

The routine analysis of UMDs should be seen in a positive context, since there are huge benefits in improving products, surgical techniques and patient outcomes, and it serves as a useful adjunct to post-market clinical studies, clinical research and national joint registries – as well as providing transparency in litigation cases.

A global issue

Around the world, advanced healthcare systems recognise the need for independent assessment of medical devices. The Australian Department of Health states: “It is recommended that all explanted medical devices (not only those associated with fault or adverse events) are sent for

assessment to provide an overview of device performance.”

In the USA the FDA requests that all adverse incidents are reported; and moreover has started to focus on more indepth reviews in some areas.

The FDA is also concerned about the biological response to metal implants. Its document Biological responses to metal implants states:

“9.8

POST-MARKET SURVEILLANCE

The main challenge in both pre- and post-market phases of regulatory review is the lack of adequate study endpoints and diagnostic and/or prognostic tools…Currently, it is extremely difficult to determine whether symptoms are related to the implanted device or other causes. Predictive assessment of the pro-inflammatory potential and subsequent tissue remodelling remains a major challenge affecting real-world performance of implantable devices and biomaterials.”

In Europe there has been a focus on and support for explant analysis. In particular, a recent paper, What Do We Learn From Explant Analysis Programs? explains that UMD analysis is likely to be the key to improvements in surgery. Failures are largely under-reported; however, reporting of failures is mandatory, so analysis helps distinguish between sporadic events and general failure.

“…explants should be sent to centralised centres dedicated to these issues. Ideally, such centres should be independent from the industry… Transparency should be based on establishing a strong link between the centres and major scientific societies that could report to health authorities.”

In the UK the recommendations for the NHS are set out very clearly on its website and include the following:

“An adverse incident is an event that causes, or has the potential to cause, unexpected or unwanted effects involving the safety of device users (including patients).

“For example:

• A patient’s treatment is interrupted or compromised by a medical • device failure

• A misdiagnosis due to a medical device failure leads to • inappropriate treatment

• A patient’s health deteriorates due to medical device failure. Causes • may include: design…”

Furthermore, the MHRA – the body responsible for regulating medical devices – states: “All items should be quarantined if possible. Do not throw them away, repair them or return them to the manufacturer.”

The NHS has also recognised the need for independent analysis and that is currently being implemented in centres across the UK. Surgeons across the world have recognised the need to fully evaluate failed devices.

In summary, as the number of medical devices, procedures and manufacturers increases, the likelihood of more adverse events affecting patient safety is likely to climb. Independent analysis in specialist centres allows the explant to be considered in line with patient safety concerns. It also allows reporting on how the device has performed; and in the case of any subsequent litigation, allows full transparency. q

New name for hearings service will stress independence, GDC says

[

TO DEMONSTRATE the independence of its hearings service, the General Dental Council (GDC) has given it a new name – the Dental Professionals Hearings Service – and created a new website at www.dentalhearings.org

As part of the new service, the dedicated website has been launched to provide a one-stop-shop for all information related to dental hearings, including the different types of hearings, details of future and past hearings and a summary of what dental professionals, witnesses and the public can expect when attending a hearing.

Announcing the new service, the GDC said: “While our hearings already take place before a committee of independent panellists, this change has been made to further highlight the independence of the hearings function from the GDC’s investigation and prosecution functions and to improve the experience for all who attend a hearing.”

The legislation the GDC operates under prevents the creation of an entirely independent hearings function; and as such the new service remains legally part of, and accountable to, the GDC. The new dedicated hearings service, however, illustrates the council’s commitment to making improvements wherever it can while waiting for regulatory reform.

GDC chair Lord Toby Harris said: “The independence of the hearing from any investigative process is a fundamental tenet of justice, but we know this separation at the GDC isn’t always understood by those going through the system. By making this change we are aiming to highlight this independence and thereby promote confidence in the fairness of the system.”

Executive director of fitness to practise, John Cullinane, added: “This is one of several important changes we are making in relation to how fitness

to practise and hearings work. While we are limited in how far we can go before our outdated legislation is reformed, wherever possible we are focused on making changes that will improve the experience of everyone involved. We believe this administrative separation will help people to better understand how the system works.”

The GDC was at pains to reassure anyone involved in a hearing that the creation of the new service will cause no disruption to any hearings that are already scheduled. q

Dentists challenge new PM to deliver on improving access to care

[

THE BRITISH DENTAL ASSOCIATION (BDA) has said the future of NHS dentistry in England will now hinge on action from Downing Street, the Treasury and the Department of Health, following the election of Liz Truss and the appointment of her new top team.

The association says the NHS contract that dentists in England work to is ‘discredited’ and is fuelling the crisis in dental care. Minor 'tweaks' to the contract announced before summer recess do nothing to improve access, the BDA said, or halt the exodus of dentists from the NHS, and had no additional funding attached. The BDA characterised the changes as amounting to little more than ‘rearranging the deckchairs’.

In its statement the BDA said: “The BDA is seeking a decisive break from this failed, target-based contract, underpinned by sustainable investment. It estimates it would take an extra £880m a year simply to restore resources to 2010 levels. It has stressed government objectives to improve access and boost retention cannot be achieved within the financial constraints set by the Treasury.”

It pointed to recent BBC research that revealed nine in 10 practices are

unable to take on new adult NHS patients. In Liz Truss's constituency base of Norfolk that stands at 100%, and the same applies in Suffolk, home to Therese Coffey – the new Deputy PM and Secretary of State for Health and Social Care. In Surrey, home to new Chancellor Kwasi Kwarteng, the figure stands at 93%.

Both Conservative leadership candidates stated that action on the dental crisis would form a top priority in their new administration, with Liz Truss stating that action on the access crisis in dentistry and general practice would be a 'top three' target in her first 90 days. Neither candidate stated whether they intend to reverse a decade of savage cuts.

BDA chair Eddie Crouch declared: “These three politicians will determine whether NHS dentistry has a future. Like millions of others, their constituents have few options. To save this service the new residents of Number 10, the Treasury and the Department of Health must act now.

“The PM said action on the access crisis would be a top priority. After a decade of savage cuts any progress requires real reform and fair funding.” q

Fitness to practise report now includes data on ethnicity

[THE GENERAL DENTAL COUNCIL (GDC) has published its annual statistical reports for 2021 on fitness to practise and registration. Both reports benefit from efforts within the professions to build a more complete picture of equality, diversity and inclusion (EDI) data, enabling it to better understand the diversity of the professions.

EDI data is now provided by almost 92% of professionals – a huge improvement on the 66% held in 2020. Over time the information will be used to understand the impact of regulation on people who share protected characteristics and will enable the GDC to detect discrimination and work to eliminate it.

The data have made it possible – for the first time – for the fitness to practise report to include a reliable breakdown of cases by EDI characteristics, including ethnicity.

The report highlights that, of all concerns received, a disproportionately high number were raised against Asian or Asian British dentists (28%) when compared to their proportion of the total register (24%). Conversely, white dentists were underrepresented (43% of all concerns raised) when compared to their proportion of the register (50%).

While the differences were evident in relation to concerns raised, the report indicates that the GDC progressed concerns in broadly the same proportions that it received them.

Executive director of fitness to practise, John Cullinane, said: “This is the first time we have published EDI data in the context of fitness to practise and we’re in the early stages of understanding what it tells us, and how we can use it in our work to ensure there is no discrimination in any of our

process. What we do know is that EDI analysis is complex and, as such, the data in our reports should not be used in isolation to draw conclusions, as many other factors may be relevant, such as practice location, size of practice or local demographics.

“We are committed to developing the data we hold and our understanding of it, and we look forward to sharing further insights as our work progresses.” q

Facial trauma: the effects can be devastating psychologically as well as physically

[

IF THE EYES are the windows to the soul, the face is often the ‘seat of recognition for a human being’. That was how Mumbaibased psychiatrist Avinash de Sousa saw it in his paper on Psychological issues in acquired facial trauma, published in the Indian Journal of Plastic Surgery in 2010.

“The face is a vital component of one’s personality and body image,” he wrote. “There are a vast number of variables that influence recovery and rehabilitation from acquired facial trauma many of which are psychological in nature.”

Change in the appearance of one’s face as a result of injury, disease, burns or trauma is ‘always a challenging task’, he argued, and can lead to severe psychological injury in addition to the original physical damage.

Those consequences can include PTSD: indeed a study in the US in 2017 found that a quarter of facial trauma patients who filled in initial assessments and seven-week questionnaires were suffering from PTSD at seven weeks. Despite that, Only eight out of 47 case notes contained any reference to mental state.

Facial trauma can be described as either orofacial (the mouth and face) or maxillofacial (the jaw and mouth). Its causes can be broadly broken down into four types: accident, violence, disease and medical negligence. Accidental injury could be from car or motorcycle crashes, accidents at

work or simply falling – although a caveat put forward by Professor Tony Elliott of the UK Centre for Medico-Legal Studies points out that people who have experienced domestic violence may report that they have ‘fallen’. Facial trauma sustained as a result of violence speaks for itself, while medical negligence could be the result of maxillofacial surgery or plastic surgery.

Avinash de Sousa described the possible psychological consequences thus: “These may range from body image issues to post-traumatic stress disorder symptoms accompanied by anxiety and depression.”

He explains: “Depression and anxiety associated with facial trauma is often coupled with worries regarding recovery and length of the treatment process. Facial trauma leads to disfigurement which also affects the social image of the patient. Patients may express unhappiness regarding facial appearance after facial trauma and this may often lead to social withdrawal and isolation. They may feel inferior to others in social presentation and may often feel a stigma associated with facial disfigurement.”

When it comes to making a claim for injury, those effects will have to be considered.

Professor Elliott states in his paper The Psychological Consequences of Facial Injuries: “Any claim for a facial injury will have to take into account both the physical and the psychological harm that has been

inflicted on the claimant. In general, the assessment of the value of these claims is governed by the Judicial College Guidelines, which provide estimates for the amount of compensation that people can be expected to receive for different kinds of injuries.”

He goes on to explain the experts comprising the multidisciplinary team that will probably be involved. “They will probably be examined by an expert in facial scarring and disfigurement (such as a maxillofacial expert or a plastic surgeon), as well as a psychiatrist. The psychiatric expert witness will be able to testify to the extent of the psychological harm caused by the physical injuries.”

Bath-based personal injury lawyer

Ian Morris describes the process: “Your specialist solicitor will instruct a medical expert to assess the injury and discuss its impact with the claimant. They will note any long-term implications such as visible scarring, nerve damage or impact on eyesight and breathing, and provide a detailed report outlining the long-term prognosis to the solicitor.

“The contents of the report will be used to assign an appropriate compensation settlement value for the injury element of the claim, with more serious facial injuries leading to higher compensation settlements. In cases of disfigurement there may also be severe psychological reactions which can be awarded substantial amounts.” q

If in doubt, scan! Study points to X-ray errors

[A NUMBER OF NEGLIGENCE CASES involving facial trauma involve failure to diagnose fractures. A study published in the US in 2019 found that 10 out of 69 defendants named in facial trauma cases were doctors in A&E departments and it was usually for failure to diagnose a fracture.

Boris Paskhover, one of the study’s authors and an assistant professor in the department of otolaryngology at Rutgers New Jersey Medical School explained: “One of the main issues we found is someone comes in with an injury, and the emergency physician gets an X-ray but misses the fracture. But the honest truth is, if you don’t do it often you can easily miss a small fracture. Even a small fracture often needs some sort of management so it doesn’t become a big deal.”

If missed, small, midfacial fractures typically heal with no major consequences. “But the mandibular fractures have implications as a stress-bearing bone. If you miss a small fracture and it gets infected, you have consequences,” Paskhover cautioned.

The one practice change A&E doctors should consider is to carry out a CT scan if there is suspicion of a fractured jaw. “A CT scan’s going to pick it up; an X-ray may not,” added Paskhover.

A recurring pattern in the lawsuits involved doctors who relied on the X-ray they – or someone else – misread as normal, without getting a CT scan. In some cases, patients themselves gave a clue that something was missed.

“If the X-ray is normal and they still say something doesn’t feel right, scan them,” said Paskhover. q

PI lawyers attack moves to limit damages for birth injuries

[CUTTING DAMAGES for injured babies whose futures have been destroyed by negligence is not the solution to the patient safety crisis in the NHS, the Association of Personal Injury Lawyers (APIL) has declared.

The parliamentary Health and Social Care Committee has recommended the introduction of an ‘administrative’ scheme for compensating injured patients, initially for birth injury. The scheme would remove the need to prove there has been negligence in patient care before compensation is paid for an injury.

“This move would create a huge increase in the number of claims against the NHS,” said APIL’s Guy Forster. “The only way that would be sustainable would be to reduce dramatically the level of damages people would be able to claim. That would undermine the principle of full and fair compensation for people who are injured through the negligence of others and that is completely unacceptable.

“It is often forgotten that behind the statistics are real people and families who have been harmed when they should not have been,” he went on. “The purpose of compensation is to help them to try to get their lives back on track.”

Mr Forster also made the point that NHS

England’s first Patient Safety Commissioner welcomed

[ACTION AGAINST MEDICAL ACCIDENTS (AvMA) – the charity for patient safety and justice – has welcomed the appointment of England’s first Patient Safety Commissioner, which was announced by the Department of Health and Social Care on 14 July.

AvMA gave evidence to the Cumberlege Inquiry, which gave rise to the proposal of a Patient Safety Commissioner. However, the appointment is seen by AvMA as only a small step in the right direction.

AvMA’s chief executive Peter Walsh said: “We welcome the appointment of the first Patient Safety Commissioner in England. However, we are conscious that this commissioner’s role is limited to the area of medicines and devices, which is an important but relatively small part of patient safety work. The government has missed an opportunity to appoint a Patient Safety Commissioner with a much wider role in promoting good patient safety culture and patient and family empowerment across healthcare.

“It remains a scandal that the government refuses to fund specialist advice for people who the NHS has harmed through lapses in patient safety, and even has plans to reduce their access to justice. We look forward to working with Dr Henrietta Hughes with a view to addressing these and other pressing improvements in patient safety and responding to harmed patients and their families.” q

patients who suffer devastating medical negligence should not be expected to accept further treatment from the same provider which has already let them down, or rely on the over-stretched system of state-funded care.

“It is naïve in the extreme to suggest that our already overburdened NHS and social care system is capable of providing the care these patients need,” he said. “The system was often notoriously slow, even before the additional burden of the COVID pandemic. Relying on the state to pick up the pieces of negligence in the current climate would be nothing less than catastrophic for both injured patients and the NHS.” q

Studies will determine efficacy of robotic joint replacements

[RESEARCHERS FROM the Royal Orthopaedic Hospital in Birmingham and the University of Warwick are trialling the use of robots in hip replacement surgery for the first time. The aim of the trial is to determine whether using robots results in better outcomes from hip replacement surgery. Hip replacement surgery is one of the most common operations performed by the NHS.

The world-first RACER-Hip study has received £1m funding from the National Institute for Health and Care Research and, alongside the existing RACER-Knee study announced last year, will give new insight into the value of robotic assisted surgery in the NHS. It will be run jointly between Warwick Medical School at the University of Warwick, University Hospitals Coventry and Warwickshire (UHCW) NHS Trust, and the Royal Orthopaedic Hospital in Birmingham.

The study is being led by two surgeons: Mr Peter Wall, from the Royal Orthopaedic Hospital Birmingham and Warwick Clinical Trials Unit at the University of Warwick (pictured right discussing the trial with TV’s Dr Xand) and Professor Ed Davis from the Royal Orthopaedic Hospital Birmingham.

In robotic assisted hip replacement surgery, a robotic arm prepares the bone and inserts the components to a pre-programmed threedimensional plan. It is thought using a robot to perform the surgery allows more precise, consistent surgical techniques and this may help to reduce variation and prevent poor outcomes and complications that can require ‘redo’ surgery.

Mr Wall said: “The RACER-Hip study is a significant investment by the NHS to examine the effectiveness of robotic hip replacement surgery. Robotic technology has the potential to revolutionise hip replacement surgery; however the first step to this is understanding whether it can help enhance the care surgeons provide. We are really excited that some centres such as Northumbria Healthcare NHS Foundation Trust have been provided with a robot specifically to take part in this research.”

Professor Davis added: “The research will help orthopaedic surgeons across the world to better understand the most effective tools for performing hip replacement surgery and ensure the very best outcomes for their patients. This study will also include an in-depth health economic analysis to inform the NHS if this technology should be widely adopted.”

Equal numbers of participants will be randomised to each treatment group to find out which surgical technique results in better outcomes. That will include asking questions about people’s ability to complete activities and their quality of life in the long term and will also find out which method provides the best value for the NHS.

The team will invite patients from at least six NHS hospitals across England and Scotland to take part over the coming months.

The first site has opened at the Royal Orthopaedic Hospital, while the Northumbria Healthcare NHS Foundation Trust has just taken delivery of one of the robots for the trial. The manufacturer of the robot, Stryker, will be supporting the study costs to ensure hospitals do not have to pay extra to take part.

RACER-Hip joins the RACER-Knee study which began recruitment 12 months ago and is helping answer the same questions for knee replacement surgery.

The RACER studies represent a substantial investment of over £3m pounds by the NHS to help establish the effectiveness of robotic joint replacement surgery. Leading professional bodies including the Royal College of Surgeons, British Hip Society and British Association of Knee Surgery all recognise the importance of and support the research initiative, which will see the UK lead the way in research in robotic joint replacement surgery. q

Ankle fractures can have a multiplicity of outcomes

Fractures around the ankle joint are common in clinical trauma practice. They also figure quite commonly in a medicolegal practice –not only in personal injury, but also sometimes in clinical negligence work. In this primer, orthopaedic surgeon Mr Nikhil Shah provides a brief outline of ankle fractures.

[THE ANKLE JOINT is also called as the talo-crural joint. It is basically a tenon-and-mortise joint consisting of the distal part of the tibia and the fibula which articulate with the talus – a bone of the foot. The tibia and fibula act as a mortise and form a notch in which the body of the talus fits, acting as the tenon.

The distal part of the tibia is referred to as the plafond. On the inside of the ankle joint the mortise is formed by the medial malleolus –part of the tibia – and on the outer side by the lateral malleolus, the end part of the fibula.

Functionally, it can be regarded as a hinge joint. The main movement at the ankle joint is to allow dorsiflexion and plantar flexion of the foot. It also allows some other types of movements which are referred to as pronation and supination combined with adjacent subtalar and midtarsal joints. The ankle gains its stability not only from the shape of the bones, but also from important ligaments that provide stability circumferentially around the ankle joint.

Causes and types of fractures

The ankle is an important weightbearing joint. It is commonly injured in different types of accidents such as trips and slips, falls from height, cycling or motorcycling accidents, high speed vehicular accidents and sporting injuries among others. Simple trips and slips tend to figure commonly in a fracture clinic. The mechanism can also be a low energy trivial twisting injury in older and frail patients.

There are many different types of ankle fractures. They might affect a single malleolus, or they may be bimalleolar or trimalleolar fractures. Based on the level of the fracture affecting the fibula, ankle fractures can be classified using the Weber classification system. That also gives an idea about the stability of an ankle fracture. Another important classification system looks at the mechanism by which the fracture is caused. That is called the Lauge Hanson classification system.

Ankle fractures can also be associated with injury to the ligaments around the ankle joint. Sometimes there are focal injuries to the cartilage, which are referred to as osteochondral injuries.

Principles of treatment

Not all fractures need surgery. Stable fractures that are undisplaced can be managed without surgery. In some of those fractures, early weightbearing can also be allowed either in a boot or in a plaster cast.

Unstable fractures or fractures that cause a step in the articular surface often need open reduction and internal fixation. That consists of making a surgical incision over the fracture and fixing it with the help of plates and screws.

Open ankle fractures

Some high-energy ankle fractures are associated with significant soft tissue injury to the skin and surrounding soft tissue. It may be seen as a direct open cut to the skin, resulting in exposure of the bone to the external environment. That is called an open fracture. However, skin injuries can also occur in the form of degloving, extensive blistering or swelling.

Ankle fracture dislocations are associated with a dislocation of the talo-crural joint. That can be a potentially life-threatening injury, especially in patients with diabetes. Treatment can be very challenging. Such injuries can be associated with compromise to the nerve supply or blood supply to the foot. There is also a risk of compartment syndrome.

In such ankle injuries it may not be possible to perform open reduction internal fixation. They may need to be treated using external fixation. That consists of a system of long screws which are anchored to the healthy bone above and below the fracture and connected to each other using a system of rods and clamps to form a scaffold outside the ankle.

Importance of diagnosis in trauma practice

Ankle fractures can be associated with a long-term risk of secondary post-traumatic arthritis. That is determined by the severity of the initial injury and extent of damage to the cartilage of the tibia or the talus. Appropriate diagnosis and management of ankle fractures therefore becomes important. The injury affects a weightbearing joint and hence the treatment revolves around obtaining a good quality reduction followed by stable internal fixation to obtain as good an outcome as possible.

Medicolegal implications

These fractures appear commonly in personal injury reports. Not all ankle fractures are necessarily associated with good longterm outcomes. It is recognised that some of them may result in persistent pain or loss of movement. A common question asked is regarding the long-term risk of arthritis following an ankle fracture.

In clinical negligence practice, ankle fractures may figure in breach of duty allegations relating to a missed diagnosis or inappropriate surgical management or perioperative care. q

Bimalleolar ankle fracture treated with ORIF – open reduction internal fracture

Diabetes: pitfalls in diagnosis and early management

Dr Bobby Huda, consultant in diabetes and metabolism at St Bartholomew’s and Royal London Hospitals, describes the different types of diabetes and how they are diagnosed.

[DIABETES IS A LIFE-LONG CONDITION wherein the blood glucose levels are higher than normal. The vast majority (90%) of cases are type 2 diabetes, with around 10% type 1 diabetes or atypical cases.

Type 1 diabetes

People with type 1 diabetes are usually diagnosed in childhood or as a young adult. It often presents as a diabetes emergency with high blood glucose and ketones in the blood from lack of insulin. They will usually need to be admitted to hospital. They will need to take lifelong insulin, as in most cases their pancreas will eventually stop making any insulin altogether. Management can be difficult as it is difficult to match insulin to food and exercise. Some people with type 1 diabetes use an insulin pump, for greater precision with their doses, and a glucose sensor to monitor glucose regularly.

Type 2 diabetes

With type 2 diabetes, people are usually diagnosed at a later age – 50s and onwards – and the prevalence increases with age. People of ethnic minority origin have a higher prevalence of type 2 diabetes and may be diagnosed at a younger age.

Many people with type 2 diabetes have a ‘pre-diabetes’ phase which can last for several years. There is a strong genetic component with type 2 diabetes.

People with type 2 diabetes still produce their own insulin, but are ‘insulin resistant’ – usually down to being overweight. They may control their blood glucose with lifestyle measures only at first – diet and exercise – but then often need oral medications and sometimes insulin: currently about 17% of people with type 2 diabetes are taking insulin.

Diagnosis

People with diabetes usually present with the classic symptoms of increased thirst, increased urine frequency and weight loss. Other symptoms include fatigue and blurred vision. The formal diagnosis is made by fasting glucose, glycated haemoglobin (HbA1c) or an oral glucose tolerance test (OGTT); with fasting glucose or HbA1c the test should be repeated on a different day. However, if people are symptomatic and have a raised random glucose, it is adequate for diagnosis.

Occasionally, diabetes can present as an emergency (diabetic ketoacidosis) and it is almost always in cases of type 1 diabetes. People with type 1 diabetes tend to be young and otherwise healthy; therefore type 1 diabetes can sometimes be misdiagnosed as other conditions – for example, urine tract infection – and the delay in diagnosis can be dangerous

and occasionally life threatening. That would usually occur in primary care, but could also happen in a busy A&E department with junior medical staff.

The onset of type 2 diabetes is more gradual, so it would be rare to have an emergency presentation. As described above, there is likely to be a condition where an individual has ‘pre-diabetes’ – where they are borderline for diabetes. This could lead to a delay in diagnosis.

People with ‘pre-diabetes’ are often followed annually for many years with a blood test before developing type 2 diabetes. Appointments can be missed, communication can break down and occasionally a diagnosis could be delayed by some years. This could lead to complications.

Gestational Diabetes Mellitus (GDM)

That is impaired glucose tolerance that develops during pregnancy. Screening for GDM in the UK is guided by NICE Diabetes in Pregnancy guidelines and is triggered by risk factors such as a BMI of greater than 30 kg/m2, ethnic origin, family history, previous GDM or previous large baby.

Gestational diabetes is diagnosed by an OGTT at 24-28 weeks gestation in most cases. Missing GDM can be serious with a baby being large for gestational age, potentially leading to obstetric complications such as difficult labour, shoulder dystocia, unstable lie and increased chances of caesarean section. There are also associations with maternal health, including gestational hypertension and pre-eclampsia. Rarely, missed GDM can be associated with stillbirth or diabetic fetopathy.

Early management

The management regime for type 1 diabetes is to start insulin immediately. Type 2 diabetes is usually treated with lifestyle measures initially, and then followed by oral medications. GDM is managed by diet and then metformin or insulin. A delay or misdiagnosis of the type of diabetes can mean a delay in starting insulin – when it is misdiagnosed as type 2 diabetes – or inappropriate insulin – when it is misdiagnosed as type 1 diabetes – and lead to side effects of weight gain or hypoglycaemia (low blood glucose).

Usually the diagnosis of diabetes is straightforward and takes place in primary care. However, with increasing numbers of people with diabetes being diagnosed, systems are often under strain and cases can be missed or mis-diagnosed. q

•

To contact Dr Huda call 020 3594 6058 / 07919 924925, email bobby.huda1@nhs.net alternatively visit londondiabetes.com or clevelandcliniclondon.uk

Fibromyalgia syndrome: what it is and what it isn’t – discuss

In this extract from a longer paper, Dr Anthony Hammond describes the littleunderstood condition that is debilitating for many sufferers.

[ FIBROMYALGIA SYNDROME (FMS) is by definition a syndrome: an association of clinical features which are recognised as occurring together but do not have an established disease-based explanation. In this case it comprises chronic widespread pain (CWP), aspects of fatigue, depression and polysymptomatic distress.

At the outset it was intended to define a group with ‘medically unexplained’ pain, but that has been revised and it may now stand alongside other diagnoses and may not be the dominant clinical issue.

The commonest causes of CWP are mechanical, osteoarthritis and spinal degeneration. My own work in discogenic pain management can often be helpful in understanding spinal problems.

The condition was mooted in 1990 by an American College of Rheumatology committee and was redefined in 2010 and 2016, for example deleting physical

examination findings (tender points) and creating a simplified scoring of criteria which are essentially wholly subjective; there is no external objective test to validate the diagnosis.

The result of those sequential changes is that the performance of the diagnosis in daily practice is often poor and many clinicians diagnose it loosely – many assuming, alongside patients, that the diagnosis is a disease. That often casts a pall over a case and its assumed poor prognosis.

Fibromyalgia, once established, tends to persist and treatment is commonly unhelpful. However, since it is not a disease with a driving pathology, it does not, in my view, impose a natural history of progression on the patient.

Fibromyalgia is common, at around 1-7%, and the antecedents are well established. Chronic widespread pain is more common and occurs earlier, mainly in women, so

there are therefore a significant group of individuals who are at high risk of developing FMS, and in whom pre-existing psychological or degenerative problems create a trajectory towards the diagnosis which occurs most commonly around age 50 in females.

Accordingly, an accident or trauma may be the final straw and the diagnosis may ‘appear’ after an accident and be retrospectively attributed to it by working clinicians. Often, careful consideration of records shows that the issue is about acceleration of otherwise probable outcomes and an expert with a clear understanding of those factors can assist in clarifying and quantifying the diagnosis and its implications to the court. q

• A much fuller discussion of the issues is available from the author for those who might be interested.

Somatoform pain disorder in a medicolegal context

by Dr Ivan Ramos-Galvez, Consultant in Pain Medicine

[ SOMATOFORM DISORDER (SD) is defined as physical symptoms suggestive of a medical condition which are unexplained by an underlying disease or mental disorder. Somatoform symptoms are common and mild ones – such as stress as a trigger for migraine or butterflies in the stomach before public speaking – are experienced by many people at some point in their life. SD is more frequently seen in women than in men, and usually manifests before the age of 25.

While the condition is often chronic, there is also a milder form that resolves in around 50% of cases. It is often closely associated with comorbidities such as depression, anxiety, substance abuse and personality disorders. Although similar in presentation to factitious disorder and malingering, SD can be distinguished from those as the symptoms are not consciously produced.

As the name suggests, in somatoform pain disorder the main symptom is chronic pain. This often arises from an apparently minor injury and is far in excess of the level expected from such an event. It may also last for considerably longer than the normal healing time associated with such injuries. There is often an overlap with other somatoform disorders, so the existence of a purely painrelated syndrome is sometimes debated. Some form of physical trauma, such as a traffic accident or bone fracture, is thought to be a predisposing factor in around 50% of cases.

It is now widely recognised that pain may have more than one cause. Furthermore, the experience of pain contains both physical and emotional aspects, and these cannot be separated.

Patients with similar injuries may report widely differing pain levels and, while most patients will recover quickly, for some the pain will persist for many months after the original injury. It is not entirely clear why this happens but it has been hypothesised that some people possess a pre-existing psychological vulnerability that leaves them open to developing chronic pain.

The human stress-coping mechanism, which determines an individual’s stress threshold, is primarily genetically determined, but can be individually shaped by psychosocial influences. Early adversity that affects this mechanism may result in dysfunction of the stress response system, which can lead to a long-term impairment in the ability to react to stress.

This increases the likelihood that both physical and psychosocial factors may be important in the development of various conditions later in life and may result in somatisation. It is well known that an accumulation of psychologically traumatic events in early life leads to an increased incidence of psychiatric illness in adulthood, and it is possible that this vulnerability also extends to some physical conditions.

Many studies have reported a connection between multiple adverse events in childhood and the later development of potentially somatoform disorders, such as complex regional pain syndrome and fibromyalgia. Adverse events are reported in a much higher proportion

of patients with these types of conditions than in patients with medically explained chronic pain.

One study found that around half of the participants with SD had significant anxiety or depression that was likely to be the cause of their illness. Furthermore, patients with a history of trauma report higher levels of pain, more accompanying symptoms and a higher use of analgesics. However, not all individuals report a history of traumatic events, so their presence is likely to be a predisposing factor rather than a causal event. It is also possible that their effect is cumulative, which is borne out by fact that many patients report multiple traumatic events, rather than one isolated incident.

The ‘But For’ test is the indicator of causation in medical negligence cases. The basic principle of the test asks ‘but for the existence of x, would y have occurred?’. In many cases, this test is sufficient, but in some claims the circumstances surrounding the facts cannot be viewed in such a simplistic way. One important issue is that many patients have some form of illness before the alleged incident, and it is vital that the court is able to identify the natural history of the disease, in the absence of any other events, to determine what difference the alleged event may have made to the ultimate outcome.

Previous legal rulings have established that in cases where the link between a possible causal factor and a disease has not been definitively established, it may be sufficient to show only that the contribution of the causal factor is likely to be material. Therefore, in pain cases where there is no obvious triggering event, the patient’s psychological history takes on a new relevance.

In a patient with a significant history of trauma or psychological difficulties, it may be possible to argue that there was a pre-existing vulnerability to chronic pain, which would have been triggered sooner or later by a seemingly trivial event. Even where there is a potential triggering event, the patient’s postincident history should also be carefully considered.

If another event or injury is revealed, this may limit the extent of any claim, as it could be argued that the patient would probably have developed their condition sooner or later anyway. 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 these 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

Young peoples’ mental health affected by COVID, studies find

[A

NUMBER OF RECENT REPORTS

have brought to light the increasing instances of mental health issues among children and young people – particularly during and since the COVID pandemic.

Monthly statistics for May released by NHS Digital highlight a record number of children and young people being referred to emergency mental health services.

Dr Elaine Lockhart, chair of the Royal College of Psychiatrists' Faculty of Child and Adolescent Psychiatry, commented: “The record numbers of young people seeking help for mental health emergencies shows the devastating impact that the pandemic has had on their mental health, and the overwhelming pressure on already stretched services.

“The government must urgently take steps to ensure there is an adequate workforce to meet the rising demand for mental health support. Further action to expand early intervention services such as the creation of youth hubs and strengthened mental health support in schools would help ensure more young people can access help before becoming seriously unwell. Specialist mental health services need ongoing investment to recruit and train clinicians. Without this many

more young people could end up in crisis.”

Meanwhile, a recent study found that emergency hospital visits for self-harm were twice as likely for boys, and three times as likely for looked-after children, compared to pre-pandemic levels. Stricter COVID-19 lockdown measures coincided with an increase in serious self-harm triggered by social isolation in children and young people, according to the study published in BJPsych Open

Dr Lockhart said: “We know that the majority of young people who self-harm do not seek help from health services. While not all children who self-harm will need psychiatric intervention, we do need to have a full range of mental health support in our communities so that the most unwell can access help quickly. The earlier we offer support, the less likely people are to develop long-term mental health problems.

“It’s important to consider the impact of measures put in place during the pandemic on self-harm, so that we can plan mental health services for the future. That’s the only way to ensure all children and young people receive the mental health support they need, when they need it.”

Dementia services suffer

COVID effects

[THE PANDEMIC also had an effect on service provision for people at the other end of the age spectrum. A new report by the National Audit of Dementia reported increased waiting times to initial assessment and diagnosis of dementia in community-based memory services, within the context of the impact of the COVID-19 pandemic.

Lockdown had a severe impact across services, the report said, with 66% experiencing both periods of closure and staff redeployment. The average waiting time from referral to diagnosis has increased by over four and a half weeks.

The report also looked at offers of virtual assessment, routine assessment, diagnosis and treatment and postdiagnostic intervention. Over a third (35%) of patients had an appointment via phone or video call, 45% at their usual place of residence.

Some routine preliminary assessments were not carried out – or not recorded – for all patients. As part of their initial assessment, 61% of patients had a discussion recorded about eyesight, 58% had a discussion recorded about hearing and 76% had a falls history discussed and recorded.

Of patients with a working or confirmed diagnosis, 62% were offered a post-diagnostic intervention (excluding signposting to another service). That varied across services from 2.9-100% of patients to be offered an intervention after diagnosis. A quarter of services are not offering cognitive stimulation therapy. NICE guideline NG97 recommends cognitive stimulation therapy for patients with mild to moderate dementia. q

Further research, lead by the University of Warwick, found that financial worries and sleep difficulties are consistently associated with poor mental health in students. The study was based on a survey taken between July and September 2020 of 895 university students and 547 young adults who were not in higher education. Analysis showed several consistent factors linked to high levels of poor mental health at the end of the first lockdown in the UK. Those factors included previous mental health conditions, carer status, financial worries and increased sleep irregularity and difficulty.

Dr Lockhart responded: “Students must be able to access the services they need to thrive, whether that be accessing advice on their financial situation, academic success, social connections and lifestyle. However, those who develop more acute mental health problems must be able to access specialist services for diagnosis and evidence-based treatment.

“It is vital that the Government increases its efforts to co-ordinate between universities, NHS and mental health services to tackle the gaps in student mental health services and takes concrete steps to tackle the workforce crisis in mental health.” q

Standards report draws response from BPS

[

THE British Psychological Society (BPS) has responded to a Professional Standards Authority (PSA) report into safety in Health and Social Care. The BPS welcomes the new Safer care for all report from the PSA and its recommendations to ensure safer care for everyone.

The report highlights the serious and concerning workforce shortages in health and social care, which are having an adverse impact on patients, families and carers. The BPS says it “strongly believes that action on workforce shortages is an urgent priority for government and supports the recommendation that all four UK governments should work together to develop a coherent strategy for the regulation of professionals”.

With the BPS operating a PSA-accredited register for the wider psychological workforce, it is acutely aware of the importance of its role in supporting patients, service users and the psychological workforce.

It says that the psychological workforce is a vital element of tackling the workforce crisis and ensuring people can access the care and support they need. It is also crucial that the existing workforce is well supported, particularly given the long-lasting impact of the pandemic on staff morale, wellbeing, and retention and recruitment.

BPS chief executive Sarb Bajwa said: “This report makes for important reading and addresses a number of concerns. The BPS is committed to working with the PSA, other stakeholders and government in order to ensure patient safety is the priority, and that the workforce, in all its forms, is in place with the necessary support, supervision and funding needed to provide high quality care to those that need it.” q

Problems with sclerotherapy can lead to successful litigation

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

[A RANGE OF TREATMENTS are in use for the management of varicose veins in the UK and throughout the world. Injection treatment for varicose veins – sclerotherapy – has a 200-year history, but remains a useful method of management. Modern enhancements of the method have brought new life to the treatment. They include injecting the sclerosant drugs as a foam and using ultrasound imaging guidance to deliver the treatment more accurately.

How does sclerotherapy work?

Injections for varicose veins work by introducing a compound which destroys the lining of the vein, but not any other part of the vein. The endothelial lining is essential to prevent blood sticking to the inside of the vein.

The two drugs licensed for use in the treatment in the UK are detergents and dissolve the lining cells of the veins within about 20 seconds of injection. The vein is blocked by returning blood, which undergoes thrombosis. Veins treated in that way are reabsorbed over a period of time, varying from weeks to months depending on the size of the vein.

The aftercare of the treatment includes application of a compression bandaging or stocking to the leg. The treatment is commonly used for the lumpy varicose veins as well as for cosmetic veins (thread veins). Different techniques of injection are used for large veins and small veins.

Problems with sclerotherapy

Robust evidence of efficacy of the treatment is available for the use of injection of foamed sclerosant into large varicose veins. Sclerotherapy for thread veins has a long provenance but limited scientific data to support particular methods of use of the treatment. However, effective strategies of use of sclerotherapy have been summarised in consensus documents, which reflect current standards of treatment and serve as references for good clinical practice.

Sclerotherapy leaves all successfully treated veins in the leg before they are completely reabsorbed. As a result, the treated region looks a little bruised and cosmetically unsatisfactory immediately after sclerotherapy. That improves rapidly as all the treated veins are absorbed over the ensuing few weeks or months. Occasionally an inflammatory process occurs, known as phlebitis, leading to redness and tenderness of some of the treated veins. Those expected adverse events should be documented in written information provided to patients prior to treatment.

Less common problems include persistent brown discolouration of the skin and the formation of thread veins in regions of sclerotherapy for large varicose veins. Rare problems following sclerotherapy include severe allergic reactions, heart attack and stroke, according to advice from the National Institute for Health and Care Excellence (NICE).

Complications of treatment leading to litigation

Varicose veins are widely treated by a range of practitioners, although vascular surgeons most frequently manage the problem. The most frequent complaints from patients concern the cosmetic outcome of treatment. Residual varicose veins may persist following an initial treatment and can be readily removed by sclerotherapy during follow-up.

Curiously, complaints commonly arise from thread vein treatment, despite those being the smallest veins. Many experienced practitioners in the field regard thread veins as one of the most difficult clinical problems to treat successfully. That is compounded by the fact that treatments are sometimes

done by aesthetic practitioners or nurses with very limited experience. Patients may grumble about the aesthetic outcome of treatment, but it is relatively uncommon for it to lead to litigation.

More serious problems arise when a practitioner uses an inappropriate technique or solution for a particular type of vein. The sclerosant drugs are available in a wide range of concentrations intended for use in different sizes of vein. The thread veins in the skin on the legs require very low concentrations of drug, otherwise long-lasting skin pigmentation or ulceration may occur. The sclerosant must be injected into the vein to be effective and high concentrations of strong sclerosant injected outside the vein lead to protracted skin ulceration. Inadvertent injection of an artery leads to severe and extensive damage to the skin and other tissues.

Some examples of poor outcome

Fig 1: In this patient thread veins and small blue veins in the skin of the calf were injected with a much stronger solution than was appropriate about four months prior to the photograph. Intense brown bruising of the skin persists in a number of areas.

The sclerosant produced an ulcer in the skin due to destruction of the skin. The ulcer remains unhealed. That type of small vein should have been injected with a very low concentration of the sclerosant drug in order avoid skin pigmentation and ulceration.

Fig 2: A larger varicose vein lying beneath the skin was injected with a strong solution of sclerosant drug. Unfortunately, the drug was injected outside the vein which was the intended target of the treatment.

When injected outside the vein persistent skin ulceration lasting many months is the result. This ulcer arose from a faulty injection strategy which allowed the drug to be injected in the wrong place.

Fig

Fig 3: In this patient, thread veins and small blue veins in the skin of the calf were injected with an appropriately low concentration of the

sclerosant drug. Unfortunately, the injection was delivered into a small artery in the skin rather than a vein. That leads to a severe inflammatory process in the skin: a problem known as embolia cutis medicamentosa, or eponymously as Nicolau syndrome. The inflammation is very painful but slowly subsided without permanent damage to the skin over a number of months.

Fig 4: Large varicose veins were treated in this patient using ultrasoundguided foam sclerotherapy. However, the surgeon inadvertently injected a major artery in the foot while treating varicose veins in the foot. That led to Nicolau syndrome. The photos show the appearances after six weeks, when gangrene affected the forefoot.

The patient underwent a below-knee amputation and successfully pursued litigation through the civil courts, which was settled for a large sum.

In conclusion

Fig 4

Injection treatment for varicose veins remains a safe and effective treatment, especially when enhanced by the modern methods of foam sclerotherapy and when guided by ultrasound imaging. However, inexperienced or inadequately trained practitioners can produce cosmetically poor outcomes or even disastrous results following incorrect injection of sclerosant drugs. q

Cardiac care waiting times continue to soar

[LATEST NHS ENGLAND FIGURES

reveal that the number of people on cardiac waiting lists grew to a record 333,915 at the end of June in England: 8,347 more than the previous month and the 24th consecutive month where an increase has been seen.

For the first time, over 100,000 people have been waiting over four months for potentially lifesaving heart care – the maximum waiting time target. That represents 31% of all people on waiting lists for cardiac care.

The figures were quoted by the British Heart Foundation (BHF), who pointed out that the longer people wait for treatment, the higher their risk of becoming disabled from heart failure or dying prematurely.

The NHSE figures quoted by BHF also reveal that:

• 5,867 people had been waiting over a

• year as of June – a record high and

• 210 times higher than before the pandemic began, when just 28

• people were waiting that long.

• Average ambulance response time for category 2 calls – which

• includes suspected heart attacks and

• strokes – have risen to 59 minutes in

• England: the target is 18 minutes.

• The region with the highest average • ambulance response time for category

• 2 calls is the East Midlands, where the

• average time is 81 minutes.

Responding to the news, BHF chief executive Dr Charmaine Griffiths said: “Today’s figures paint a stark picture of the nation’s heart care. We continue to hear heartbreaking stories from people experiencing agonising waits for ambulances and stressful delays to heart care. Long delays to cardiac care can have tragic, even fatal consequences, with the physical and mental toll being paid by heart patients and their loved ones.

“NHS staff are doing all they can, but they urgently need significant help to get the country out of this crisis. We need government to deliver a funded cardiovascular strategy that ensures the NHS has enough heart doctors, nurses and cardiac physiologists to deliver the care so many heart patients need right now.” q

Statins not cause of most muscle pain, research finds

[RESEARCH CARRIED OUT by a team from the University of Oxford shows that statins are not the cause of muscle pain in over 90% of people who experience symptoms. The research was presented at the European Society of Cardiology Congress in Barcelona and published in The Lancet

Statins are one of the most commonly prescribed medication in the UK, with up to eight million adults prescribed them to reduce levels of low density lipoprotein (LDL), or ‘bad’ cholesterol in their blood. But side effects, particularly muscle weakness or pain, are reported by many people who take statins.

The new research has found that muscle pain or weakness is common in adults, regardless of whether they take statins or not. Only one in 15 of reported cases of mild muscle pain or weakness were found to be attributable to statin therapy, and occurred mainly within the first year of treatment.

The researchers compiled data from 23 large studies from the Cholesterol Treatment Trialists’ Collaboration, including information from almost 155,000 people. They used the information to assess the effect of statin therapies on the frequency of muscle-related symptoms across many different patient groups.

Most of the studies the researchers looked at – 19 out of 23 –compared statins to a placebo. In those studies, similar numbers of people in the statin and placebo groups reported muscle symptoms (27.1% and 26.6% respectively).

The team found that statins marginally increased the frequency, but not the severity, of muscle-related symptoms. About 14 out of 15 reports of muscle symptoms were not attributed to statins, rising to about 9 in 10 for patients taking a high-intensity treatment. That means that statins are not the cause of muscle pain in over 90% of people who report symptoms.

For every 1,000 people taking a moderate intensity statin, the treatment would cause 11, generally mild, episodes of muscle pain or weakness. That means that the slightly increased risk of muscle symptoms is greatly outweighed by the previously known benefits of statin therapy in preventing cardiovascular disease, including heart attacks and strokes. For example, for every 1,000 people taking a

moderate intensity statin, the treatment would typically prevent 50 major vascular events such as heart attacks and strokes in those with pre-existing vascular disease – known as secondary prevention – and 25 major vascular events if used for primary prevention.

Professor Sir Nilesh Samani of the BHF commented: “This accumulation of data from many clinical trials provides a clear picture that, while statins are associated with a small increase in risk of muscle pains or weakness, they do not cause the majority of muscle pain symptoms commonly associated with them. It reinforces the evidence that statins are safe, which should provide reassurance to the many people taking, or considering taking, these lifesaving drugs that have been proven to protect against heart attacks and strokes.

“However, it also shows how common muscle pain symptoms are. Almost one quarter of patients who participated in the trials reported such symptoms whether they were taking statins or placebo. It is vital that the genuine concerns of people who do experience muscle symptoms are not dismissed and that doctors have continued consultations with these patients to ensure their medication is tailored to work best for them.” q

Optometrists respond to consultation on review of Opticians Act

[THE COLLEGE OF OPTOMETRISTS has responded to the General Optical Council's call for evidence to review the Opticians Act (1989).

Based on a review of the evidence and survey responses and interviews, the college’s response includes a number of observations.

They include:

• Testing of sight must remain a protected function of the Act that can

• only be performed by an optometrist or medical practitioner.

• Refraction should not be separated from the eye health check, to

• protect the public from avoidable sight loss.

• Refraction and the eye health check should be carried out by one

• individual, to ensure quality and safety of care; and therefore refraction

• should not be delegated.

• Selling optical appliances to children under 16 and those registered

• visually impaired should remain restricted to registrants.

• Registered, competent optical professionals must remain in control of

• clinical decision-making as they use new technologies and innovations.

• Standards of care provided remotely should be developed and be

• equivalent to those that apply to face-to-face care.

In addition, the college said: “We recommend better training to all members of staff within an optical practice to ensure people in vulnerable groups are supported to use their appliances effectively, instead of legally restricting the sale and supply of optical appliances to additional groups of vulnerable patients.”

Sarah Cant PhD, director of policy and strategy at the College of Optometrists, commented: “This is a vital opportunity for the college to help shape the future of safe, high-quality eye care, as well as the profession. We have highlighted that sight tests must remain a protected function of the Act and can only be performed by an optometrist or medical practitioner, and that eye health checks must remain a vital part of sight testing to protect against avoidable sight loss.” q

NHS-funded private cataract ops ‘surge’

[

THE NUMBER OF cataract procedures carried out by independent sector providers (ISPs) has surged since 2016, according to research carried out by the Royal College of Ophthalmologists (RCOphth).

Cataract surgery is one of the most common procedures performed in the NHS. In 2019/20, for example, there were over 450,000 cataract procedures in England – an 11% jump from three years previously.

The analysis published by RCOphth focuses on the changes seen in England because the growing role played by ISPs has been a crucial part of that story; and to date there has been a lack of detailed regional and local data in the public domain which explains the trends.

The report, Changes in NHS cataract surgery in England 2016-2021: an analysis of national, regional and independent sector trends, shows that between 2016-2021 the number of NHS-funded cataract procedures increased by over a fifth (21%), with 44,000 procedures performed a month by late 2021 – almost 1,500 each day.

Within that time the role played by ISPs has increased dramatically. ISP provision increased steadily before the pandemic, but the second COVID-19 wave, beginning in autumn 2020, saw a huge shift, when NHS services faced overwhelming pressure. From a third (34%) of NHS-funded cataract procedures delivered by ISPs in December 2020, the number jumped to 55% in January 2021 and then a high of 59% in February 2021.

As hospitals overcame the most severe pandemic pressures from spring 2021 the situation again changed. The proportion of procedures delivered by ISPs fell back to under half, settling close to 45% in the six months up to November 2021. That 45% figure nonetheless represents a ‘new normal’ in the delivery of NHS cataract services, given that pre-pandemic ISP provision had never exceeded 30%.

The number of cataract procedures delivered by NHS providers was 15% lower in November 2021 than prior to the pandemic, despite the number of NHS-funded procedures increasing by 11% over the same period.

The research also found that significant regional differences exist. The North West, Midlands, South West and North East and Yorkshire were all delivering at least half of their NHS-funded cataract procedures in the independent sector in November 2021. The South East, meanwhile, was delivering a third (34%) through ISPs, while for London the figure was a quarter (25%).

Commenting on the analysis, RCOphth president Professor Bernie Chang said: “It is incredibly important this detailed data on how NHSfunded cataract surgery is delivered is now in the public domain.

“Especially since the pandemic, we have seen a big jump in the role played by independent sector providers. We all need to better understand this shift, so informed decisions are made at a local and national level when services are commissioned. That means ensuring

we continue to deliver the highest standards of patient care while not destabilising NHS eye care units delivering comprehensive care.

“The college is working closely with NHS England and organisations across the eye care sector to address challenges relating to these changes in cataract provision. Access to training opportunities, referral criteria and the post-operative pathway are three areas we are looking particularly closely at.” q

High-street cosmetic boom raises fresh concerns among surgeons

[WITH MORE AESTHETICS CLINICS opening on the high street, offering procedures such as anti-wrinkle injections (Botox etc) and dermal fillers, the British Association of Aesthetic Plastic Surgeons (BAAPS) has raised concerns about the safety of the public who may feel pressurised to have treatments due to incentives such as discounts and time-sensitive offers.

BAAPS vice president Marc Pacifico explained: “Anything that could be viewed as incentivising patients to have a procedure, particularly related to time-limited offers or discounts, is something BAAPS, the GMC and the Royal College of Surgeons is categorically against. BAAPS have a strict code of conduct for its members relating to advertising and marketing which closely follows GMC guidelines.

“Examples of good practice would include medicallyled clinics, where doctors are experienced aesthetic practitioners and the premises are seeking or fall under CQC regulation. Furthermore, we strongly recommend a form of psychological screening to be in place prior to any treatment, as well as a cooling-off period so prospective patients can contemplate their decision-making before going ahead with a procedure.

“There should be no active marketing around prices to encourage new patients to have treatments they otherwise may not have considered; however, we recognise that many clinics have loyalty schemes for pre-existing patients.” q

Surgeons body seeks Falklands memories

[IN JUNE the British Association of Plastic, Reconstructive and Aesthetic Surgeons (BAPRAS) marked 40 years since the end of the Falklands conflict. Military plastic surgeons played a pivotal role in the management of service personnel injured during the Falklands conflict, which occurred from April to June 1982. The hospital ship Uganda received some of the most severely wounded, particularly following the Exocet missile attacks on ships including the RFA Sir Galahad and Sir Tristram. In all, 48 were killed and 115 wounded in that attack alone, many of the troops being horribly burnt.

Surgeons set up a burns unit within the ship where a temporary operating suite was constructed on the old dance floor. Many procedures were undertaken – such as skin grafting for early management of burns and devastating blast injuries – for which plastic surgery is uniquely specialised.

BAPRAS recognises the important role played by plastic surgeons during the conflict and would like to improve its record of their contribution. It would like to get in touch with anyone who served in the Falklands, or has some connection to the medical service delivered there. They would like to explore any stories, accounts, photos or equipment from the conflict.

The BAPRAS Collection already contains some engaging images of the medical and surgical facilities during the conflict, particularly that of SS Uganda. Anyone who can help to improve the collection can contact them by email at collection@bapras.org.uk q

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