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OPENING STATEMENT by Martina Wilson, Business development manager

All change in health and safety? Knowing where to draw the line...get an expert on your side in boundary and construction disputes Expert Determination – is it ADR? The chartered surveyor as an expert witness

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‘Hey that’s my land!’ On a roll...residents win skateboarding park noise nuisance claims against council SatNav Forensics

Textiles and Fraud Complex loss of earnings claims – where to start ‘Let’s start at the very beginning, a very good place to start’ – A useful guide for solicitors instructed in financial services claims Veterinary Forensic Entomology

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Handle with care...the difficult issue of child abuse and the law Is Vasectomy safe? What, really, is a hernia? Establishing a sound case for noise induced hearing loss

A 21st century disability Putting legal issues under the microscope – forensic medicine

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Take a step in the right direction – call an expert in podiatry Gynaecology procedures top list of medical negligence claims

Medicolegal Issues in Laparoscopic Surgery Pitfalls in the diagnosis of head and neck cancers

Factors in medical negligence claims Compensation – how much is an injury worth?

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Advertising enquiries: 3rd Floor, Blenheim Court, Cheadle, Cheshire SK8 2LA Tel: 0161 850 1681 Fax: 0161 834 0077 email: kevin@dmmonline.co.uk Business Development Manager: Martina Wilson Email: m.wilson361@btinternet.com Copyright Your Expert Witness. All rights reserved. No part of this publication may be copied, reproduced or transmitted in any form without prior permission of Your Expert Witness. Views expressed in this magazine are not necessarily those of the publisher.

YWQ

Opening Statement RECENT WEEKS have seen the first spate of judicial rulings under the landmark Mental Capacity Act, geared to making new provision relating to persons who lack capacity. This new act will impact on many areas of legal practice, including the work of legal psychologists, whose remit includes establishing a person’s competence and intelligence – a topic covered in depth in this issue. Although the act was adopted by parliament in 2005, and effective in 2007, it is only now that the first cases are testing key provisions of the new legal boundaries it establishes. One disturbing case to which the act applied involved a woman – Mrs A – who suffered a significant learning disability with an IQ in the bottom one percent of adults of her age. Prior to meeting her husband, Ms A had twice become pregnant. A pre-birth assessment before each child concluded that she lacked the ability to meet her child’s needs without considerable support. Her two children were taken away at birth and Mrs A herself came under a court guardianship order and began using contraception administered by a monthly injection. Subsequently, Mrs A married her husband, Mr A – who also fell in the bottom one percent in IQ. Mr A wanted children and Mrs A did not – and the matter soon became an issue of severe contention with regular arguments and Mrs A reporting that her husband had shouted at her, had hit or punched her, or broken household items in a temper. Mr A tried to stop his wife from having contraceptive injections, and sometimes blocked contact with the social services. When the social services did visit, Mr A would not let his wife speak to them alone. In Mr A's presence, Mrs A indicated that she no longer wished to use contraception and signed a letter, written by Mr A, stating that she no longer wished to be contacted by social services. Finally, the court of protection became involved and the local authority asked the court to declare that Mrs A lacked the mental capacity to determine, among other things, whether she should be administered with contraceptive devices. The new legal approach placed a novel question before the courts: under what circumstances does an individual have the capacity to make his or her own decisions? The Mental Capacity Act established the framework under which this question is addressed. In court, one expert testified that Mrs A did have the requisite capacity to make decisions about contraceptives, whilst a second expert thought that Mrs A lacked the requisite capacity: In the end, the judge, Mr Justice Bodey, concluded that Mrs A should foster the very capacity she presently lacks, so that she might develop the ability to make an informed decision about the matter for herself. He ruled that Mrs A should have access to the professional support she requires and asked Mr A to honour his assurance given to the court that he would not prevent this. With warm regards

Martina Martina Wilson Business development manager

All change in health and safety? EVERYONE IN THE safety world is awaiting the publication of Lord Young of Graffam's deliberations on health and safety with interest. Much has been said, not least by Lord Young himself, about the present public perception of health and safety. You would have to have been living on a very remote island to be unaware of the issues surrounding conkers, hanging baskets and even the gritting of pavements last winter. Even so, it is a good moment to pick over some of the underlying issues. Is there a burden of inappropriate enforcement? The Health and Safety Executive are a simple and high profile target, although most commentators forget that much health and safety enforcement is actually done by local Councils’ Environmental Health Officers (EHOs). Society (or at least the press) seems to be demanding vigorous action against perceived poor businesses such as those where there are fatal accidents or major incidents like the Buncefield explosion. Looking away from these high profile categories though, enforcement action has been pretty static recently and compared to ten years ago it is down. There is certainly no statistical evidence of the heavy hand of bureaucracy in a formal sense. But what about the informal actions of Inspectors? There are no comparable figures other than numbers of visits, which are also well down. Apart from visits by EHOs driven by food safety inspection targets, businesses usually run for several years between inspections. From a compliance perspective, two common triggers for companies to seek external assistance are following an inspection or in anticipation of one following an accident. Sadly, Inspectors sometimes seem to talk a strange language of their own and a consultant is needed to act as translator. The most common topic to cause problems remains risk assessment. Is there really an explosion of claims? One can look in vain for reliable statistics. The consensus seems to be that the compensation culture is a myth. The number of traditional employers liability claims has not mushroomed in the last ten years. But are these an accurate barometer? Most major public-facing businesses are getting increasingly sophisticated in the processing of run of the mill claims without recourse to their insurers. They may face claims across a very wide range of topics these days, not just for traditional accidents but on topics like product and food safety. One of the factors in dealing with claims is the public’s perception of the organisation, particularly if they adopt a robust position. Many potential claims get sorted out informally, possibly simply by sensible action by a store manager long before a case hits their head office, let alone insurers. But these simple solutions still carry a cost. We have no figures for them but contacts in retailing suggest that they are rising, judging by the size of reserves set aside for them. The time between incident and claim has also been reducing, which perhaps suggests that the public are becoming ever more tuned in to their ‘rights’. Looking from the consumer end, it isn’t the legislators who have driven claims recently, although implementing EU Directives has provided better grounds for them. The courts provide the mechanisms for resolving claims but are not the triggers for them. Insurers negotiate and pay out (or not),

by JIM TASSELL MSc DipSH CMIOSH then recoup the funds from their clients. No, the key driver is the potential claimant, although we should ponder the impact on them of daytime TV advertising. Some people are still reluctant to raise claims, even where they have a sound cause. But their family and workmates are not all like them. We have probably all heard of cases where the claimant only acted following pressure from their mates in the pub. It is hard not to be cynical in thinking that there is a prevailing view that if something goes wrong, it’s bound to be someone else’s fault and there is always at least a good holiday to be had out of it. It is difficult to divorce these views from those on benefit entitlement, redundancy and other impacts of the current economic climate. But how can government influence these deeply entrenched attitudes? Would changes in legal processes make much practical difference? Looking ahead, there are signs of changing factors that may increase the likelihood of claims. These include an ageing workforce and a swing in focus from simple accidents to long term health issues. The Labour Force Survey reported by the HSE suggests that lost work time due to health problems, such as back injuries and stress, far outweighs that due to discrete accidents. Also now on the horizon, and not before time, are proposals for registration of health and safety consultants. So, whatever Lord Young comes up with, will it do much to get to the roots of society’s present attitudes to ‘elfansafety’? I doubt it, and I'm sure it won’t reduce the need for health and safety professionals to assist businesses both in preventing accidents and ill health and in advising the various parties sorting out the consequences of them. q

Knowing where to draw

the line...

...get an expert on your side in boundary and construction disputes

BOTH BOUNDARY AND construction disputes are complex areas requiring specialist skills and knowledge - which is where enlisting a chartered surveyor as an expert witness can prove an invaluable asset in achieving a successful outcome.

Boundary disputes Far more boundary disputes occur between the owners of two adjacent residential properties than between commercial neighbours. Residential landowners tend to tackle their disputes emotionally, seeking perceived justice rather than rationally evaluating the situation then considering amicable solutions to the dispute. Boundary disputes can be the cause of untold misery, inconvenience, bad relationships between neighbours and ultimately the loss in value of land. The general position of the boundaries in each registered title is recorded by the Land Registry using an adapted large scale Ordnance Survey plan. However the plan might not accurately represent the true ground positions of the boundaries. In fact the exact positions of legal boundaries are almost never shown on registered title plans and are not shown on Ordnance Survey maps.

So what happens when a dispute arises? The key to resolving a dispute speedily and successfully is to seek expert advice as soon as possible. In the first instance, this advice can be from either a chartered land surveyor or a chartered surveyor specialising in boundary disputes. They can then look at all aspects of the problem and advise on whether or not the plaintiff has a case. Chartered surveyors specialising in boundaries are professional advisors with relevant knowledge of both property issues and the law. They will look at the problem, prepare any technical data that may help solve the dispute at an early stage and, if necessary, provide a court with the appropriate advice and information needed to make a judgement. They can also advise on alternative dispute resolution procedures, which would avoid the need to go to court. Accurately identifying the boundary between two properties, for example, often requires specialist knowledge. The red line drawn around a property on the Land Registry plan only shows the general boundary. It does not identify whether the boundary runs along the centre of a hedge or along one side of it. Ordnance Survey maps are

equally unreliable because, as part of the mapping process, they do not mark exact property boundaries. So a line surrounding the property is not necessarily the property boundary. A chartered land surveyor will not only survey the land, check deeds and the plans attached to them, but will refer to historical documents and aerial photographs. A boundary can change over time for many reasons: a diverted water course, or a wooden fence that moves slightly every time it is replaced. The reason for such changes is rarely recorded and can lead to disputes, especially if the owner has lost the right to move the boundary line back to its original position.

Construction disputes Given the expense and disruption to a business when a construction dispute arises, not to mention the potential damage to business relationships, dispute avoidance should be paramount. However, disputes are sometimes unavoidable. In this case, chartered surveyors can act as expert witnesses for a diverse range of clients including contractors, employers, consultants, public authorities and others. Chartered surveyors are generally engaged because they ‘add value’ to the dispute resolution process and not through any formal requirement. When parties find themselves in a construction dispute, they may employ a chartered surveyor as their representative, or as

an independent and impartial expert. Chartered surveyors have a wide range of skills that the parties to a dispute can make use of. Most chartered surveyors will already have good experience of negotiation in their day to day workload and they can use this to good advantage when disputes arise. Negotiation comes at the beginning of the dispute resolution spectrum and is an informal and non-binding process in which the parties control the outcome. Both mediation and conciliation are now well established in the UK construction industry. Chartered surveyors may be involved in assisting the parties, or they may have had the specialist training to become mediators or conciliators themselves. In mediation and conciliation, the parties retain control of the process. However, the distinguishing feature from negotiation is the addition of a neutral third party – ‘the mediator or conciliator’ – who aids the parties towards a settlement. The terms of the settlement ultimately lie with the parties. In the UK construction industry the term ‘adjudication’ is used almost exclusively to describe dispute resolution under Part II of the Housing Grants, Construction and Regeneration Act 1996 (HGCRA). The process involves a third party, the adjudicator, acting as the tribunal in a dispute. The adjudicator’s decision is binding on the parties unless or until the dispute is finally determined by legal proceedings, by arbitration or by agreement of the parties. Many chartered surveyors also act as adjudicators. q

Expert Determination

– is it ADR? by CHRIS MAKIN

WHEN FRAMING THE Civil Procedure Rules, Lord Woolf had the clear intention of encouraging parties in dispute to go away and settle their differences, perhaps with the help of trained professionals. We see this in CPR Part 1 – The Overriding Objective:

1.4(1) The court must further the overriding objective by actively managing cases.

1.4(2) Active case management includes: (e) encouraging the parties to use an ADR procedure if the court considers that appropriate. and facilitating the use of such procedure... By far the most popular form of ADR is mediation, but is expert determination ADR? Let’s look at this process in more detail. Expert Determination (ED) is not arbitration. Both are private systems of dispute resolution leading to a binding result, but with differences. Expert determiners are subject to little or no control by the court, and from their decisions there is virtually no appeal, whereas arbitration is based on statute, and the court has extensive powers to overturn an unfair award. Case law on ED would fill a very slim volume! The arbitrator, like the judge, must base his decision only on the evidence presented, whereas the expert determiner can make his own enquiries and investigations, and does not even have to present his findings to the parties before announcing his decision. Parties in dispute must, with their advisers, consider carefully the best method of resolving their differences. At one extreme is litigation: closely bound by statute and case law, with fixed procedures, and the decision taken by a judge allocated to the case. Once the process starts, the parties lose control; it’s like dancing with a gorilla - the dance stops only when the gorilla chooses to let go. In arbitration, the parties have the choice of arbitrator; but again, once the process starts, the parties lose control. Mediation is at the other end of the spectrum: the parties choose the mediator, and stay in control throughout the process. The case settles only if the parties agree, and if it fails (few do!) their legal rights are intact, and they can still have their day in court. ED sits somewhere between arbitration and mediation. The parties choose a determiner with the skills relevant to the dispute, and he then controls the process, but only on the terms agreed at the outset. This is the fundamental difference: the ED process is controlled by contract, not by statute and case law. But the procedure tends to follow an established pattern, so that both sides feel that it has been fair. For many disputes the Rules published by the Academy of Experts (www.academy-experts.org) are suitable. Based loosely on the court process, the claimant makes Submissions to the expert, the defendant makes a Response, and the claimant makes a Counter-Response. Each includes all the arguments which an advocate would use at trial, and all the relevant documents. For very

complex disputes, I have my own procedure whereby both sides make Submissions, Responses and Counter-Responses. Once the expert has considered all of these, possibly made his own enquiries and asked questions of the parties, his decision is issued. The finding is normally ‘non-speaking’ – that is, without stating reasons. That may seem disappointing after all the trouble taken to produce Submissions, but that is what the parties need – an end to the dispute. How then is a determiner appointed? Either from a dispute resolution clause in a contract, in case of possible future dispute, or once a dispute arises. For example, in the sale of a company, it is normal for the vendors’ and purchasers’ accountants to get together and agree the completion accounts which will fix the price of the shares. The sale/purchase contract will provide that, if they cannot agree, an expert shall be appointed by the President of the Institute of Chartered Accountants in England & Wales. As with other professional bodies, the President has a secretariat to deal with requests, and I am frequently appointed as expert in such matters. Or an appointment is made once a dispute arises. This, for example, is how I came to be appointed to determine the closing capital account of a solicitor who had retired, when his continuing partners could not agree his entitlement. These, briefly, are the advantages of the process: • Privacy: only the parties are even aware of the dispute • Speed: a dispute could be resolved in as little as 30 days. I confess that one of mine lasted for seven years, but it was hugely complex, and for example we had to wait a few years for a decision on overseas trusts from the Tax Commissioners • Choice: the parties can appoint the right expert to understand the problem • Final & binding: absent fraud or manifest error, there is no appeal against the expert’s decision, which is what the parties need – finality • Impartiality: the expert will act fairly • Relationships: ED is a technical process, far less likely to destroy business relationships than a hard-fought court case So is it ADR? Yes and no! It is an alternative to going to court, and the parties can choose their expert and the detailed terms of his appointment. After that, all must act under the contract they agreed at the outset. And quite soon they should see an end to their dispute, with a good chance that they will continue to do business together. q Chris Makin has practised as a forensic accountant and expert witness for 21 years. most recently as Head of Litigation Support at a national firm. He has been party expert, single joint expert, Court appointed expert and expert adviser in hundreds of cases, and given expert evidence about 70 times. He performs expert determinations, being on the panel of the President of the ICAEW, and accredited by the Academy of Experts. He also practises as a civil and commercial mediator, and has mediated a vast range of cases, with a settlement rate to date of 80%. www.chrismakin.co.uk

The chartered surveyor as an expert witness by DEWI PRICE, Chartered Surveyor UNTIL SOME 10 years ago it was common for Chartered Surveyors to arrive at a Court Hearing with very differing views. In matrimonial cases for example, one party would usually aim for a high valuation of the matrimonial home, and unsurprisingly the other (the buying) party would advocate a low valuation. Two valuers, with equally contrasting figures, usually put the Judge in some difficulty. Since Lord Wolff’s report on ‘Access to Justice’ led to the Civil Procedure Rules, from 1999 the world has changed for expert witnesses who provide evidence on a wide range of matters and disciplines. The skills of the legal profession ensure that cases are well advocated – the ‘hired guns’ aiming for the best deal for their clients. In land and property disputes, todays values mean substantial sums are at stake, so the role of the valuer and surveyor is crucial. The CPR rules, and following closely to them, the Guidance Notes and Practice Statement from the RICS, mean that Chartered Surveyors must now give evidence which is impartial and unbiased, and especially uninfluenced by the party instructing or paying for that evidence. It is not uncommon for disappointed clients to query the nature of the surveyor’s advice, but ultimately a hopeless case is best well identified at the outset, rather than months (or even years) later with obvious cost implications.

The role of the Chartered Surveyor has thus evolved and many companies now have specialists with individual skills and experience. The witness box is not for the faint hearted. Disputes are varied – surveyors can forensically examine boundary problems and building disputes, valuers can assess the worth of all types of land and properties with all types of problems and issues. In times of recession, lenders invariably try to offset losses by claims of negligence against the values placed when times were good, so retrospective valuations have been very popular in the current recession, especially with the advent of ‘confetti’ letters from no win no fee lawyers. The CPR rules see that the two experts must now meet to address the issues. It is common for valuers who reach conclusions from their own assembled comparable evidence, to narrow the gap by negotiation and the consideration of further evidence. Memorandums of agreement (and disagreement) then follow to assist the court in narrowing the issues. The results of the experts meeting can sometimes limit the solicitor’s negotiations, but the rules forbid any undue ‘pressure’ to be put on the experts. Solicitors are allowed to attend experts meetings, but not to intervene, except to answer questions put to them by the experts, which has led to some interesting discussions! In the old days, the flow of legal aid saw many cases drag for years and only settled on the steps of the courtroom. The costs of litigation today remain immense but it is clear that the CPR rules have now created the opportunity of early settlements, aided by unbiased reporting from experts. The emergence of the role of the Chartered Surveyor as an Expert Witness has undoubtedly enhanced the profile of valuers and surveyors in the eyes of the public. q

‘Hey that’s my land!’ by CARL CALVERT of Calvert Consulting “HEY, THAT’S ON MY LAND!” “No, it’s not: I am only replacing that old hedge with a proper fence.” And so, with both parties believing that they are in the right a boundary dispute is about to take off. Of course, the ingredients may be a little different but the circumstances tend to be very similar. In any event there is a belief by one party at least – the other may be just ‘pushing his or her luck’ – that the boundary is well defined, that the definition on the ground is in accord with what they bought and have occupied for many years and that either there is no contrary evidence, or if there is, then it is inferior to their own evidence. So, solicitor, friend or land surveyor? A solicitor knows the law but is often not in a position to understand maps and what the lines on the map represent. As a judge told me, “Mr Calvert, I can scale a measurement on the plan but I need you to tell me what the line represents.” A friend may be able to help but can be subjective and not tell his friend what he does not want to hear. The Chartered land surveyor has to be objective under Royal Institution of Chartered Surveyors’ rules, and if it comes to preparing anything for court, then Part 36 of CPR and practice directions. The following three Court of Appeal cases show that understanding the ground and its portrayal are part of the process of obtaining a solution in law. The first point is the reliability of the topographic, that is Ordnance Survey mapping at that time. In Horn & Anor v Phillips & Anor (2003)EWCA Civ1877, Lord Justice Jacobs said of the conveyance plan: “This document is intended to transfer title to land. It gives a precise measurement – I pass over ‘or thereabouts’, which everybody agreed did not make much difference. To my mind the clear intention is to indicate exactly where that line is supposed to be. So relevantly, this map is not ambiguous. True it is that other parts of the map may be not very satisfactory because the Ordinance Survey is not very satisfactory, but in its relevant

respect one can see exactly where the beginning and the end of the line is, and if you go to the land you can see exactly where they are.” The second point refers to what was on the ground, Cook v J D Wetherspoon plc (2006) EWCA Civ 330, is the case in point. Sir Martin Nourse, in dismissing the appeal stated that; “(the Defendant) relies on these features and also on the following passage in the report of the single joint expert: ‘6. The physical and logical end of the Wheatsheaf site is defined by the northern edge of the concrete apron running around the car park which I believe is represented by the dashed line on the Ordnance Survey plan, albeit that this line is drawn in slightly the wrong position due to inaccuracies in the Ordnance Survey mapping system which they acknowledge’.” The final point refers to a presumption in law, that of hedge and ditch. In Alan Wibberly Building Ltd v Insley (1997) CCRTF 96/0813/C, Lord Justice Ward states: “This is a boundary dispute. To hear those words, ‘a boundary dispute’, is to fill a judge even of the most stalwart and amiable disposition with deep foreboding since disputes between neighbours tend always to compel, as this one did, some unreasonable and extravagant display of unneighbourly behaviour which profits no one but the lawyers. Fortunately this appeal is different. Ably argued as it has been by both counsel, it crisply raises a point of law of some importance, especially in rural England and Wales. That question, for the moment quite broadly stated, is this: where adjoining fields are separated by a hedge and a ditch, who owns the ditch?” So there we have it. Maps only show what the surveyor chose to show what existed on the ground at the time of survey according to his or her skill and the rules under which they operated. The Chartered Land Surveyor is merely a translator of the picture (the map) to the word people (the lawyers) with an understanding of their language. q

On a roll...

...residents win skateboarding park noise nuisance claims against councils by Alan Saunders of Alan Saunders Associates NOISE NUISANCE FROM skateboarding parks is a relatively new phenomenon - and one that is now increasingly resulting in successful legal action from nearby residents. In 2001, the first of the landmark skateboard noise cases came to the fore. In order to facilitate the construction of new council offices, North Wiltshire District Council (NWDC) relocated a skatepark to a site in Monkton Park, Chippenham which was within 55 metres of residential properties. Despite advice from their own Environmental Health Department, the skatepark was officially opened on the 17th February 2001. On the 18th February there was a formal complaint to the council from a nearby resident. The council then employed an independent noise consultant, who indicated that the skateboard noise needed to be reduced by 20-30 decibels. Such a reduction was completely impractical for skateboarding activities without closing the skatepark, which the local authority did not do. The Ombudsman became involved and concluded that the use of the skatepark was a statutory nuisance to the nearby properties and had been allowed to continue when it could have been abated by closing the skatepark. Compensation was paid to a number of the complainants and the skatepark was subsequently closed by NWDC. In the case of Richardson v Devizes Town Council, in 2001 the council (DTC) had installed a skatepark 30 metres from Mr Richardson’s house. Alan Saunders Associates were retained as an independent noise consultant by Mr Richardson and found that the noise impact from the skatepark on Mr Richardson’s property constituted a serious source of annoyance. Mr Richardson sued DTC and the judge noted that there was an ‘actionable nuisance.’ DTC were ordered to remove their skatepark equipment within 28 days and 90% of costs and damages were awarded against them. In 2002 Oxford City Council (OCC) constructed a skatepark in an existing recreation ground at Aristotle Lane, Oxford. Local residents, whose houses were as little as 30 metres from the skatepark, complained to OCC and instructed Alan Saunders Associates, who concluded that noise levels could be considered to cause serious annoyance to the residents. When OCC subsequently involved their Environmental Health Department, this opinion was confirmed. OCC permanently closed the skatepark on the 29th May 2002. The assessment methods which were developed and used in the above cases have been adopted by some local councils for assessing the noise impact on residents and the suitability of sites for a skatepark. These assessment methods have also been used when locating many successful skateparks over a number of years. Most potential sites for new skateparks are in recreation grounds or parks and have a similar background noise climate. In these circumstances, I have developed a ’rule of thumb’ for the location of skateparks in relation to the closest residential properties. My rule is that to avoid complaints from residents, a skatepark, if visible, needs to be 200 metres from residential properties. If mitigation measures in the form of earth bunds or fences are included in the design, then a distance of 100 metres is acceptable. These distances are measured from the centre of the skatepark to the boundary of the residential properties. Despite the above cases, the Fields in Trust organisation (formerly the National Playing Fields Association) advised in their Six Acre Standard document, a distance of 30 metres as appropriate for a skateboard park close to residential properties. In their current publication Planning Design for Outdoor Sport and Play: 2008 the distance has been revised to 50 metres. To quote their own publicity “...our well respected industry bible is used by over 70% of local authorities in the UK.” This document is therefore advising many local authorities to locate their skateparks at a distance from residential property which is likely to result in an actionable nuisance. Only time will tell what the Ombudsman thinks of this practice. In the meantime, many more residents will have their lives blighted by inappropriately sited skateparks. q

SatNav Forensics SATNAV DEVICES HAVE become so commonplace in modern society that I wonder if in a few years when I explain to my young children whether they will believe me when I tell them that we used to drive to places by simply ‘knowing’ how to get there or by reading a map. Yet, the SatNav hasn’t been around very long. The Global Positioning System (GPS) was established in 1973 by the US Department of Defense and comprises of at least twenty-four satellites (there are currently twenty-nine operational satellites in orbit). These satellites transmit a synchronised time signal, which allows a device on earth to calculate how far away each of the satellites are (based on how long it has taken the signal to reach the device), and can then triangulate its position provided it has received signals from at least three satellites. Whilst intended as a military project, in 1983 a Soviet interceptor shot down a civilian KAL 007 that had strayed into prohibited airspace due to navigational errors killing all 269 people on board. Following this, US President Ronald Reagan announced that GPS would be made available for civilian used once it was completed. By December 1993, GPS had achieved initial operational capacity, and in 1996, recognising the growing importance of GPS in civilian use, US President Bill Clinton issued a policy directive establishing GPS as a dualuse system and established an interagency GPS executive board to manage it as a national asset. It is sometimes hard to believe that the first TomTom device didn’t reach the shelves in Halfords until as late as 2004, although prior to that it was possible to install TomTom software on PocketPCs equipped with a GPS receiver. In order to receive a signal, the SatNav device must have a clear view of the sky, and I always get a kick when TV shows like 24 somehow manage to ‘track’ people in the subway or multi-storey car parks using GPS. So, history lesson over, what can we learn from a SatNav? Quite a lot actually. Depending on the make and model, different devices retain different quality and quantity of data. A device I examined recently had maintained a log of the past 240 planned journeys, in addition to the last few ‘recorded’ locations where a

by PAUL VELLA of Evidence Matters

‘GPS fix’ had been obtained and stored. One of these in particular showed the defendant going to the wrong address and then plotting a new route to the correct address just half a mile away. Some devices will record dates and times of journeys, others won’t. Likewise, some devices will maintain ‘track logs’ whereas some others won’t. Some SatNav devices will connect to a mobile phone via Bluetooth, and can maintain a copy of incoming text messages as well as logs of calls made and received by the mobile phone whilst in the car. Of course, it isn’t just TomTom devices that are of interest, one case we were instructed on involved smuggling drugs across the English Channel. The handheld GPS receivers had previously been examined by another firm of experts, but they had failed to extract track logs which enabled us to provide details of the previous two dozen or so journeys across the channel by boat, including the dates and times of departure and arrival. When we started conducting forensic examinations of SatNav devices most of the data had to be decoded manually, but today there are many tools at our disposal to help us interpret the data which helps tremendously in providing a fast turnaround and keeping the costs down. Of course, the true purpose of a SatNav is to ensure that us men never have to admit defeat and ask someone for directions, which perhaps is the real reason they are so popular. q

Textiles and Fraud by JULIAN ELLIS OBE M.Phil C.Text FTI MRSC MAE, Chartered Textile Technologist THE TWO TYPES of case described below indicate some of the wide range of cases that the textile technologist can deal with. Counterfeit textiles are big business, because of the mark-up on some branded goods. When examining items in relation to counterfeiting prosecutions, the task is particularly difficult if there has been a delay between the seizure of the allegedly counterfeit goods by Trading Standards and the request for expert examination from the defence. The problem arises because countersamples from an impeccable source are much more difficult to obtain, as the season may have changed and identical goods are no longer available. Therefore examination must take place comparing similar goods. The most obvious indicators are the labels. Are the labels the same style? Is printing the same colour? Is the card on which the labels are printed of the same weight? Are there serial numbers on the labels? If there are many similar items, are the serial numbers repeated? Are there special security threads passing through the labels in both genuine and allegedly counterfeit goods? The embroidery is the next area to be considered: there is usually some on most branded goods. Is the quality of the stitching of a similar standard? Is the backing fabric to the embroidery of the same type? Is the design exactly the same? Has the embroidery been put on the garment before it was stitched together, or was it added afterwards? Then the garment itself. Are the number of stitches per inch in the seams the same? Are the buttons sewn on in the same way?

These and many similar areas of examination will all provide clues as to the possible genuineness of the goods. Unfortunately for the unsuspecting, counterfeiters often show their customer genuine goods as samples, but when the clothing is delivered most or all are found to be fake, often meaning that the poor customer is left with a financial loss, or must take the risk of trying to sell them. Some goods are made in the same factory as the genuine ones, using identical fabric and specifications to the genuine articles: in such cases normally only the labels are fake, making the determination a difficult one. The goods are simply unauthorised, but do not actually damage the reputation of the owner of the brand, since the goods are of their normal standard. In almost all cases, the brand owners are desperate to protect their brands, although some could do much more to help themselves, such as using special security markers in their labels and using serial numbers. The retailer must show that he has taken appropriate precautions to purchase from a genuine source: if he has, then he has an adequate defence, but buying goods from somebody ‘met in the pub’ is not counted as being duly diligent! In a completely different area of fraudulent activity, I was called upon a few years ago to examine production and other records of a textile company who had suffered a serious fire. When a large insurance claim was made for loss of business from the effects of the fire, the insurers suspected that the claim was rather high, and asked me to see if the claim tallied with the levels of production

they had been achieving. When I was told that the looms had been declared a complete loss in the fire, I commented that I was surprised, because to destroy a loom it is usually necessary to break the frame, in the same way as the Luddites had almost 200 years ago. It is usually possible to replace most of the small parts reasonably cheaply, since they tend to be subject to wear and therefore are consumables; the only large part to replace is the drive motor, but they are relatively inexpensive. When working my way through the huge amount of paperwork relating to production figures, I came across a fax which read “The machinery: the looms are 80% OK. It needs cleaning and replacing of the plastic parts. The job is easy but time consuming. We are going to claim from the Insurance for write off and try to move these machines to our facility at... It all depends on what the Insurance will say tomorrow. These looms can be running again by the end of February. The machinery at the preparation department is all damaged 80%. We do not need these machines if we move the looms.” That is, of course, exactly what they did, moving the looms across Europe, and repairing them. I visited the factory and found almost all the looms not only repaired, but running in production. Despite this damning evidence, the claimants persisted, but at arbitration they not only failed in their bid for business loss, but a demand was made for them to repay all their previous insurance payouts. It was unusual to find damning evidence, but no less satisfying for that! q

Complex loss of earnings claims – where to start Loss of earnings can arise in a personal injury case and, like loss of profits in business interruption claims, assessing this can require the expertise of a forensic accountant. BILL WHITE, a Forensic Services director at Baker Tilly, explains some issues that arise in the more complicated cases. THE ESSENTIAL TASKS in assessing loss of earnings are to determine: • Actual post accident earnings; • Likely future earnings; and • The level of earnings that it appears the claimant would have enjoyed but for the accident. This involves understanding the claimant’s sources of pre and post accident income, how profitable these were and what was required to achieve these levels of profitability. This is simple in principle, and for relatively straightforward cases such as those involving employed persons with stable past and fairly predictable future career paths and earnings patterns, it is also simple in practice. However, there are the other, more interesting, cases on which this article focuses. Factors that can make assessing loss of earnings difficult include: • Relatively short pre-accident track records; • Incomplete financial records; • Unusual financial arrangements and accounting practices; • Businesses operating in rapidly changing sectors of the economy; • The affects of other significant events unconnected to the accident Short track records or volatile economic sectors require one to look at such factors as the industry in general, how other firms fared over the relevant period, what the business plans and budgets had been and how the individuals controlling the business had performed (or not!) against budgets in the past. Incomplete financial records may require accounts reconstruction work in order to determine past performance (pre and post accident). Some individuals combine self-employment with trading through limited companies and joint ventures with third parties. They may involve other ‘partners’ who may or may not contribute to how the income is earned or how profitable the businesses actually are. It is important to separate such things as profit sharing arrangements put in place for reasons of tax planning from the real operating revenues and costs of the business, which may have been affected by the incapacity of the claimant. Assessing loss in difficult cases tends to require a combination of detailed investigative and analytical work and the ability to stand back and ‘see the wood for the trees’. A thorough understanding is required of how the business works and what the limiting factors are, and thus what the necessary cost structure would be for a given level of activity. My term ‘more interesting’ is that of a forensic accountant who enjoys distilling relevant financial data and trends from the often incomplete and

chaotic jumble of documentation and assertions that some claimants, and defendants, produce. To help with the simpler quantum issues Baker Tilly’s Forensic Services team has developed a PC-based toolbox with numerous pages of facts, statistics, calculators and other tools, including Gross to Net Earnings and Ogden Interactive for multiplier calculations. Registration is free at www.bakertilly.co.uk/forensictoolbox. q

‘Let’s start at the very beginning, a very good place to start’

A useful guide for solicitors instructed in financial services claims by Grahame Goodyer IMC MAE MEWI WHEN SOMEONE puts words to a well known song in your head you can’t stop singing them but when it comes to a financial services claim, ‘Let’s start at the very beginning’, is the only place to start. This may sound perfectly logical but I receive many claim enquiries that only detail the loss scenarios, such as when it all went wrong. Yet, when making a claim against a financial advisor, bank, investment bank, etc., (or ‘firms’, using the FSA term), for any financial services claim it is essential to review all the history, and go right back to the beginning. Let’s take a typical scenario. A client comes to you stating they believe they were ill advised and have lost a substantial sum of money, say £100k on an investment of £300k. The loss became evident 6 months ago and the firm has declined to compensate the client following a formal written complaint. The client tells you that it happened for various reasons but most importantly because they had been advised to invest in a particular investment fund as it was low risk and had been a top performing fund for the last 10 years. Then it completely bombed and now your client is £100k down. Before this, the investments the client held were successful and the client had made good profits on his investments. The instructing solicitor asks the financial services expert to prepare a report on this particular fund and why the client should never have been advised to invest in it. He sends the expert all the documents his client has,

including the valuation at outset, a recent valuation, copy of the complaint letter and various product documents. What the expert will also need are numerous other papers from the client’s file. These should ‘start at the very beginning’ of the relationship with the firm and may pre-date the investment complaint by many years. In particular, the expert will need:Copies of the ‘client questionnaires’ that have been completed over the years, preferably from the first meeting. There will be at least one and maybe many more. The expert will be looking to see if they are fully completed, dated and signed by your client and the advisor. ‘Letter(s) of recommendation’. These are legally required whenever advice is given, no matter how big or small an investment, and should be dated before the investment advice is given. These letters should state what has been requested of the advisor and the basis on which he/she believes the recommendation is suitable. This covers the term, risk category and general suitability of the investment for the client for his/her personal circumstances. It is important to remember that financial advice should fit the client, not the client fit the product. Terms of business, file notes, including any internal notes, memos, research undertaken by the firm, second opinions from line managers or compliance, comparative and/or alternative products and why these were not selected and finally what commission or enhanced terms they received for the firm or the client. Basically everything the firm has on the client’s file. Should you doubt that such disclosure will occur, FSA rules dictate that a client is entitled to see everything on their file including internal notes and comments. The firm is entitled to charge for their time and it may take a month or so, but any longer and they risk punishment from the FSA. A further point to note is that all firms must keep records for a minimum of 3 years on any matter. Most advice must be kept for at least 6 years or, in matters of pension transfers, for the remainder of the client’s life. Between the client, the solicitor and the expert, the claimant is now getting closer to being able to put together a justified claim. This will start with the client’s first questionnaire and the recommendations the advisor made. A financial services expert can spend considerable time reviewing the completeness and accuracy of these documents and any recommendations that followed. The information the expert gains from this early period is critical to forming a view as to whether the claim for losses has validity or is a non-runner. This review will be repeated each time advice is sought or given and consider any changes made to the objective, risk and timescale of any of the investment proposals the firm/advisor has made and/or if the client’s financial needs have changed. Once this process has been completed, a good expert will review all other relevant investments the firm has advised on for your client and make appropriate comment. Causation for your client’s losses may have occurred many years earlier, but due to past positive market conditions did not cause loss or concern to your client at that time. However, these could just as likely have caused losses if market conditions had been different. A good financial services expert will then assist you with the basis for the claim and the criteria that will have the best chances of success. They will often find aspects not previously considered which give it more weight. So, ‘having started at the very beginning’ we found it was ‘the very best place to start’ as it gives us the grounds for causation, and the reasons why your client was miss-sold or ill advised. It can then be determined how best to take the claim forward, either via the Financial Ombudsman Service (FOS), which deals with claims up to £100k (but does not allow claims for costs) or the courts. Your choice may be influenced by the costs. FOS make no charge to the claimant so this route has the benefit of limiting costs to the legal advice and the expert report, whereas the court system undoubtedly means the costs are likely to escalate but should be able to be reclaimed if successful. q

Veterinary Forensic Entomology by PETER BATES, Ph.D. MSB. C.Biol. FRES – Veterinary Entomologist Forensic entomology is used by law enforcement agencies throughout the world to estimate the point of death (post-mortem interval or PMI) of a human corpse through the analysis of its invertebrate fauna. Forensic entomology can also be used to aid in the enforcment animal health regulations. Under the Animal Welfare Act (2006) (updated 2007) it is an offence to cause unnecessary suffering to any animal. Reasonable steps must be made to ensure that the animal’s needs are continually met, including protection against pain, injury, suffering and disease (including ectoparasite infestations). The welfare of farmed animals is additionally protected by the Welfare of Farm Animals (England) Regulations 2007, which allows for Codes of Recommendations for the welfare of animals to be produced. Although these Codes are not statutory requirements, livestock farmers are required by law to ensure that all those attending to their livestock have access to the relevant Codes for the species farmed. Although their main aim is to encourage farmers to adopt high standards of husbandry, Codes may also be used to back-up legislative requirements. Where a person is charged with a welfare offence, failure to comply with the provisions of a welfare code may be relied on by the prosecution to establish guilt. Anyone found guilty under the Act may be banned from owning animals, fined up to £20,000 or sent to prison. Domestic livestock can be attacked by a number of ectoparasites (parasitic insects, mites or ticks living on the skin of the host), all capable of causing considerable distress and possible death of the host. Consequently actions required to prevent or treat ectoparasites are included in the relevant Code of Recommendations. Failure to follow the Codes can result in considerable animal suffering, which can be considered unnecessary as effective chemical treatments are available to prevent or cure infestations. However, chemical treatment is not foolproof. It is important that the ectoparasite is identified correctly and the correct treatment applied. Skill is required in applying a treatment effectively, some products do not claim 100% efficacy and in some cases the ectoparasite has developed resistance to the treatment. Consequently, it is of paramount importance to differentiate cases of treatment failure from those of definite neglect. Ectoparasites affecting sheep include scab and blowfly strike, both widespread throughout the UK and making up the bulk of veterinary forensic entomology investigations. Sheep Scab, caused by the mite Psoroptes ovis, is a form of debilitating allergic dermatitis resulting in wool loss, intense irritation, epileptiform seizures, scab formation and death. In addition to the Animal Welfare Act 2006 the disease also falls under the Sheep Scab Order (1997), giving Local Authorities (LAs) the means to improve the control of scab and prosecute when owners of infested sheep do not take appropriate control measures voluntarily. Ageing the duration of scab infestation (and therefore the period of neglect) is crucial to a successful prosecution. Unfortunately this is not easy. Early lesions are virtually undetectable, this ‘sub-clinical’ phase (characterised by low mite numbers and small lesions) can last for a matter of days, weeks, months or even years before the lesion progresses into the active (visible) clinical phase, eventually covering the whole of the sheep. The duration of the sub-clinical phase can be influenced by breed of sheep, parasite virulence and previous exposure to scab. Thus the animal with the largest lesion is not necessarily the animal with the oldest lesion. Blowfly strike (invasion of living sheep tissue by larvae (maggots)

of the greenbottle, Lucilia sericata), if not treated can cause considerable suffering and mortality within a flock. A method must therefore be available for the authorities to estimate the duration of strike on an individual animal in order for a prosecution to be successful. One such method compares the species, life-stage (instar) and size of infesting larvae against standard larval growth curves for varying temperature ranges for the major fly species associated with strike in the UK. Although targeted to strike in live sheep, the method has also been used to age larvae taken from strike cases affecting cats, dogs, poultry, pigs and wildlife. Only a small proportion of the L. sericata population will strike sheep, the vast majority are involved in the environmentally useful tasks of disposing of dead bodies and carrion. Consequently, where dead sheep are concerned it is important to know if the animal died from the effects of blowfly strike or was struck after death. The EU Animal By-Products Regulations brought into effect in May 2003 prohibits the on-farm burial or burning of fallen stock (animals that have died through natural causes) due to the risk of disease spread through groundwater or air pollution. Animals must be taken to/collected by an approved agent for incineration. Prosecutions can occur when carcases are left in situ or illegally dumped. In these cases it is possible to determine the PMI of these carcasses and therefore how long the carcase has been abandoned. q

Anaesthesia and negligence claims –

get an expert on the case by DAVID M LEVY MB ChB FRCA, Consultant Anaesthetist 40 YEARS AGO, anaesthetists in hospital and isolated site maternity units were summoned to provide general anaesthesia (GA) for women undergoing Caesarean section (CS) and forceps delivery. The establishment of labour epidural services led to the development of obstetric anaesthesia as a subspeciality. Nowadays, resident obstetric anaesthetists are part of multidisciplinary teams in hospital obstetric units.

Analgesia and anaesthesia Analgesia is pain relief (in labour, or after birth). Anaesthesia is more profound - the abolition of sufficient sensation to allow operative delivery (by forceps or CS).

Regional blockade ‘Regional’ anaesthesia means the selective numbing of a part of the body. In obstetrics, pain is eliminated by freezing the sensory nerves as they enter the lower end of the spinal cord. Local anaesthetic and/ or opioid (morphine or morphine-like drugs) can be introduced into epidural, subarachnoid spaces (or both). The regional analgesia rate in the UK is 22.5%. For planned (elective) CS, the vast majority of UK anaesthetists inject directly into the subarachnoid space. This is a spinal anaesthetic.

Claims A recent review identified 841 anaesthetic claims against the National Health Service Litigation Authority (NHSLA) in the 12 years between 1995 and 2007. Regional anaesthesia was the single largest category, comprising 44% of claims (of which half were obstetric). Three quarters of the 246 obstetric anaesthesia claims involved regional anaesthesia. ‘Damaging events’ were nerve damage, inadequate anaesthesia with resulting pain, and back pain. Other injuries were ‘dural tap’ (of which more later), epidural haematoma (bleeding in the vertebral column), drug error, and high block/ hypotension (low blood pressure). Burns and pressure sores were complications secondary to the sensory blockade. Claims related to infection included epidural abscess and meningitis.

Complications of regional anaesthesia ‘Dural tap’ is accidental meningeal puncture with an epidural needle, which has an incidence of roughly 1%. Women who sustain a dural tap can develop a severe, characteristically postural headache, caused by leakage of CSF. The headache is worse on sitting up and relieved by lying down. If a large dose of local anaesthetic, intended for the epidural space, reaches the subarachnoid space, the block can be high enough to impair the nerve supply to the diaphragm (main breathing muscle) and cause cessation of breathing. This is known as a ‘total spinal’.

If local anaesthetic is injected inadvertently into an epidural vein, symptoms and signs of local anaesthetic toxicity can arise from the effect of high concentrations of local anaesthetic in the central nervous system (CNS). Magnetic resonance imaging (MRI) has shown that the conus medullaris (lowest bit of the spinal cord) commonly extends below the level of the body of the first lumbar vertebra. A medicolegal case series published in 2001 describing damage to the conus medullaris led to an authoritative recommendation that spinal needles should not be inserted higher than the spinous process of the 3rd lumbar vertebra.

General Anaesthesia In the 1960s and 1970s GA was used for most elective and emergency cases. The UK Obstetric Anaesthetists’ Association’s national database recorded a rate of GA for CS of 11% in 2005. 12% of the obstetric anaesthesia claims handled by the NHSLA involved general anaesthesia. Awareness, airway/breathing problems and failure to provide general anaesthesia were the ‘damaging events’. Obstetric GA requires that once the patient is anaesthetised, a breathing tube is placed into the trachea (windpipe). The incidence of failure to intubate the trachea in the obstetric population is reported consistently as around 1 in 250. Unrecognized oesophageal intubation (placement of the tube into the gullet) will result in hypoxia (deprivation of oxygen to mother and baby) and ultimately death if not corrected promptly. Such an eventuality in 2010 would be construed as negligent. Historically, use of deliberately low concentrations of anaesthetic agent (to preserve uterine tone) and avoidance of opioids (to prevent neonatal respiratory depression) were responsible for a high incidence of awareness. In the 1960s it was accepted that 1 in 20 women would be awake at some point during CS. It is now well appreciated that posttraumatic stress disorder will follow wakefulness under anaesthesia, and that awareness is almost always negligent. In any case of neonatal hypoxic ischaemic encephalopathy after operative delivery, the conduct of anaesthesia (and whether it was timely or delayed) will inevitably be scrutinised.

Major haemorrhage In the UK, a woman dies every two months from haemorrhage in childbirth. The obstetric anaesthetist is responsible for infusing blood, coagulation factors and specialised drugs, as well as monitoring the woman’s overall condition.

Pre-eclampsia Another cause of maternal mortality world-wide is the syndrome often identified by high blood pressure and protein in the urine. Obstetric anaesthetists control blood pressure that threatens to cause brain haemorrhage, and treat kidney failure and pulmonary oedema (fluid on the lung). q

Expertise with vital evidence

in mind PSYCHOLOGISTS SPECIFICALLY trained in legal issues, as well as those with no formal training, are often called by legal parties to testify as expert witnesses. In criminal trials, an expert witness may be called to testify about a vast range of issues such as eyewitness memory, mistaken identity and fitness to plead (in court) - to name just a few. Psychologists who focus on clinical issues often testify specifically about a defendant's competence and intelligence. More general testimony about perceptual issues may also come up in trial. The term ‘legal psychology’ has only recently come into usage, primarily as a way to differentiate the experimental focus of legal psychology from the clinically-oriented forensic psychology. Together, legal psychology and forensic psychology form the field more generally recognized as ‘psychology and law’. Following earlier efforts by psychologists to address legal issues, psychology and law became a field of study in the 1960s as part of an effort to enhance justice. Psychological issues can have a great bearing on the outcome of a trial – take eyewitness memory, for instance. This can be divided into three stages: Stage 1: At the time of the incident When witnessing an incident, initial information is memorised, however, research demonstrates that the accuracy of such information can be influenced by several factors. Take the duration of the incident for example. In an experiment carried out by Clifford and Richards (1977), an individual is instructed to approach a number of police officers. They are told to talk to the officers for either 15 or 30 seconds. Thirty seconds after the conversation has been completed, the experimenter asks the police officer to recall details of the person they’ve just been speaking to using a 10-point checklist containing questions about the person’s appearance such as hair colour, facial hair etc. The results of the study revealed that in the longer 30 second condition, police were significantly more accurate in their recall. Stage 2: Time between witnessing an incident and recall This stage is concerned with the period of retention between seeing an incident and the subsequent recollection of that incident. Research has consistently found that the longer the time between witnessing an incident and recalling it, the less accurate the recollection of that incident becomes. There have been numerous experiments, usually related to a staged event, that support this contention. Malpass and Devine (1981), for example, compared the accuracy of

witness identifications after three days (short retention period) and five months (long retention period). The study found no false identifications after three days, but after five months, 35% of identifications were false. Stage 3: Giving evidence The final stage in the eyewitness memory process relates to the ability of the witness to access and retrieve information from memory. In a legal context, the retrieval of information is usually elicited through a process of questioning and it is for this reason that a great deal of research has investigated the impact of types of questioning on eyewitness memory. The most substantial body of research has concerned leading questions, which has consistently shown that even very subtle changes in the wording of a question can influence subsequent testimony. One of the most notable researchers in this field is Elizabeth Loftus who has been investigating eyewitness testimony for over 30 years. In one of

her studies, participants witnessed a film of a car accident and were asked to estimate the speed of the cars involved. One group of witnesses were asked to estimate the speed of the cars when they ‘contacted’ each other, whilst a second group of witnesses were asked to estimate the speed of the cars when they ‘smashed’ each other. On average the first ‘contacted’ group gave an estimate of 31.8 miles per hour. Whereas, the average speed in the second ‘smashed’ group was 40.8 miles per hour.

This process avoids the detention of innocent persons in hospital merely because they are mentally unfit. It has been held that the reference to the ‘act or omission’ means that the jury should not normally consider whether the defendant had the requisite ‘mens rea’ (the Latin term for ‘guilty mind’) which is usually considered one of the necessary elements of a crime. q

Fitness to plead Psychologists are increasingly being asked to comment on fitness to be interviewed and fitness to plead. The outcomes and accuracy of these assessments greatly impact on the criminal justice process. In the law of England and Wales, fitness to plead is the capacity of a defendant in criminal proceedings to comprehend the course of those proceedings. The concept of fitness to plead also applies in Scots law. Its United States equivalent is competence to stand. If the issue of fitness to plead is raised, a judge may find a defendant unfit. This is usually done based on information following a psychiatric evaluation. In England and Wales the legal test of fitness to plead is based on R v Pritchard. The accused will be unfit to plead if he is unable to: • Comprehend the course of proceedings on the trial, so as to make a • proper defence; • Know that he might challenge any jurors to whom he may object; • Comprehend the evidence • Give proper instructions to his legal representatives. If the issue is raised by the prosecution, the prosecution must prove beyond reasonable doubt that the defendant is unfit to plead. If the issue is raised by the defence, it need only be proved on the balance of probabilities. In Scotland the test is based on HMA v Wilson, and has two elements: • To be able to instruct counsel and • To understand and follow proceedings. If the judge determines that the defendant is unfit to plead, evidence will be heard and the jury will be asked to determine whether the defendant did the act or made the omission charged against him/her as the offence.

Handle with care...

...the difficult issue of child abuse and the law CHILD ABUSE IS probably the widest known type of abuse and involves many complex factors relating to legal issues. Dealing with this difficult situation sensitively, whilst attempting to provide legal evidence is the role of the child psychologist. Psychologists may complete child abuse investigations for government or private agencies, for a parent making allegations against another adult or parent, for a parent being accused of child abuse, for the court as part of a custody or visiting rights risk assessment, or as part of the treatment of a child or adult. Working Together to Safeguard Children â&#x20AC;&#x201C; A guide to interagency working to safeguard and promote the welfare of children 2006 defines child abuse thus. Abuse and neglect are forms of maltreatment of a child. Somebody may abuse or neglect a child by inflicting harm, or by failing to act to prevent harm. Children may be abused in a family or in an institutional or community setting, by those known to them or, more rarely, by a stranger. They may be abused by an adult or adults, or another child or children. With child abuse, the abuser can be a member of the same family, a relative, friend or stranger. The abuse usually starts with the grooming process and then escalates to emotional, physical, or sexual abuse. Child abuse however can be any form of cruelty towards a child, who is any person under the age of 18. Abuse can take place in many different locations from the home to a residential care home, or whilst the child is in the care of any public body or institution.

Once an allegation of child abuse has been made, it must be investigated to determine whether there is a basis for the allegation. Psychologists are frequently asked to evaluate children and adults to assess whether a pattern of abuse is evident, to identify personal, family and outside stressors that are contributing to the abuse pattern, or creating a high risk situation for abuse to occur, and to develop recommendations to eliminate the abuse that is identified. Recommendations may include removing a child from parental or residential care, removing a parent or other adult from the household, implementing supervised visits or discontinuation of visits, changing parental custody and treatment/rehabilitation for the child or the abuser or both. Child abuse investigations usually involve clinical interviews with all involved parties, and collecting information from all appropriate sources. Psychological tests may be employed to assess mental functioning, identify possible psychological disorders or problems, or identify abuse risk factors. Frequently, the findings are presented in court, and the court determines whether there is sufficient data to determine if abuse took place, and who did it. q

Is Vasectomy safe? by DR TONY FELTBOWER MB BChir DRCOG AFOM CUEWcert IN 1890, VASECTOMY was first suggested as an alternative to castration for men with enlarged prostates. In the early 1890’s, it was also suggested as a ‘treatment’ for certain criminals and undesirables, and for a time, enforced sterilisation was legal for some. It wasn’t until 1948 that vasectomy came into common use as a form of permanent contraception. At this time, the operation was performed through an incision on each side of the scrotum, a loop of vas deferens would be brought through the incision, a segment removed and the ends tied off. In 1974, no-scalpel vasectomy (NSV) was pioneered by Dr Li Shunquang in China, carried out through a single mid-line incision or puncture wound under local anaesthetic and is now the recommended method of vasectomy in Britain. More than 65,000 vasectomies are done each year in the UK – in hospitals, clinics and, increasingly, in GP surgeries. There is a recognised programme (via the Faculty of Sexual and Reproductive Health) for training in NSV and the faculty has a list of 24 registered trainers throughout the country. Surgeons are encouraged to undertake a minimum of 50 operations each year, to conduct regular audits of their work and attend regular courses to keep up-to-date. Vasectomy is now commonly carried out in GP surgeries and clinics and has a very low, rarely severe, complication rate (perhaps <2% risk of infection, excessive swelling or bruising). A more serious complication of vasectomy is development of a chronic pain syndrome (PVPS), which can occur many months or even years after a vasectomy. This is one of the two commonest reasons for litigation, as it can be difficult to treat and occasionally become quite disabling. Published papers quote anything from 5-30%. However, there is a large variation in defining PVPS and within my organisation, British Association of No-Scalpel Vasectomists (BANSV, affiliated with ASPC-Association of Surgeons in Primary Care) we believe the incidence is lower, perhaps below 5%. The other common reason for litigation is failure of the operation. Failure is well-recognised, and a rate of 1:2000 (after ‘confirmation’ of sterility) is generally quoted. Failure does not imply sub-standard care, although, of course, sub-standard care can result in failure but is extremely difficult to ‘prove’. Early failure, recognised when initial post-vasectomy semen tests still show live sperm, is slightly greater than 1:2000 Litigation often arises because informed consent has not been obtained. ‘Informed’ means that the patient has been advised of the actual procedure, how it will be done, irreversibility (having the operation reversed is not always successful) as well as recognised risk and complications and failure. In addition, alternative methods of contraception should also have been discussed, in particular, long-acting reversible contraceptives (LARCs). All this means that the patient should be made aware of alternatives to vasectomy, as well as risk of: excessive swelling, bruising, infection, chronic testicular pain and even testicular atrophy (where the blood supply to a testicle is inadvertently cut off during the operation, resulting in the testicle ‘dying’ on that side, and eventually needing to be removed; when this happens, it can be due to sub-standard care during the operation, but not necessarily). These issues should be written on the consent form which the patient signs, or at least in an information leaflet that the patient has had a chance to study beforehand. On the day of operation, the patient should be encouraged to ask questions, and steps should be taken to ensure that the patient understands the nature and implications of the operation, and that it is the right method of permanent contraception for him and his partner, as well as the risks and failure rates listed above.

It goes without saying that all the above should be properly documented in the patient’s medical record, as well as a proper record of the operation itself, including any problems or difficulties encountered either before the operation, during or after. Appropriate information should be provided regarding post-operative care, in particular what the patient should do, and whom to contact, if any concerns arise. Lack of proper records makes it more difficult for a surgeon to defend him/herself when a complaint arises. Finally, it should be stressed that sterility cannot be confirmed until appropriate semen tests have been carried out and an additional method of contraception should still be used until sterility is confirmed. Traditionally, two consecutive clear tests were required. However, it is now recognised that one completely clear sample at least four months after the vasectomy is sufficient to confirm sterility, as evidence shows that the risk of pregnancy after one clear sample is the same as after two. Also, ‘special clearance’ can sometimes be given if there are still only a small number of non-motile sperm present at least seven months after the operation. Complaints still arise when the partner becomes pregnant say 12 months later, but he has not done any semen tests and just ‘assumed’ he would be OK! You can’t blame the surgeon for that, assuming that proper advice and information have been given, including reminder letters when sperm tests are not received back at the expected times. q

What, really, is a

hernia?

by MARCUS ORNSTEIN MB ChB FRCS Hernia? That’s straightforward – it’s just a weakness in the muscles allowing tummy content to come through the tummy wall as a lump which is pushed out by a heavy strain. So what's the problem?

The wandering testis So the scene is set. As the testis floats through the canal it takes with it a tube of peritoneum which closes off behind. But if, as is common, the tube does not close properly tummy content, be it bowel or omentum (the fatty tissue which lies over the bowel in all of us), can easily slip into it. This is why herniae are common in male infants and boys. But this tube of peritoneum may stay partially closed and empty for a very long time: until, one day, that proverbial strain pushes a loop of bowel or omental fat into it. This can be many years later, even in old age. And it can also, and often does, occur without any memorable straining event at all.

An embryological journey

The dilemma

If only it were so simple. After all, herniae are common in infants and young boys who hardly strain at all (except to fill their nappies) and we all strain from time to time but most of us never develop a hernia. In order for me to explain I need to take you on a journey. Come with me to the start, in a mother’s womb. One of the last bits of male development in the foetus is the appearance of testes in the scrotum.

You will now understand why there are surgeons who say all herniae have a congenital basis even if a strain is ‘the last straw’ which brings one into being. So their view is that there can never be any liability for a hernia since they occur commonly without straining and even if there was a strain the hernia was going to happen anyway, sooner or later. But more on this later.

Earlier, each testis develops with its kidney on the back wall of the abdomen; but it eventually breaks free and migrates down and round to the front and then through a tunnel in the muscles of the groin, or inguinal, region. This tunnel leads to the neck of the scrotum and then on down to where most testes end up. Any problem with this leads to undescended testis, a common congenital abnormality which either rights itself in the first few years of life or needs a surgical operation to correct it.

A muscular tunnel If this tunnel, called the inguinal canal, did not exist, normal testicular descent could not occur. So this is a natural canal, which we all have – men and women – leading from inside the tummy to outside and is not, in fact, a ‘weakness’ at all (but see below). Although women do not ‘need’ such a canal we all have the same basic anatomy so it is there, albeit much narrower than in men. It is an oblique tunnel through the three layers of muscle of the anterior abdominal wall and it is this obliqueness, with muscle at the front protecting the deep opening and muscle at the back protecting the superficial opening, which prevents us all from having herniae from birth.

Are there different types of herniae? What I have described is called an indirect inguinal hernia. But there are others – direct inguinal hernia and, in different parts of the body, femoral hernia, umbilical or paraumbilical hernia, epigastric hernia and rarer ones such as Spigelian hernia. In case you were wondering, a hiatus hernia is rather different (another article, another day?). The aetiology of a hernia at the navel is obvious, after all that is where the umbilical cord came through the abdominal wall, and the others, including direct inguinal hernia, more closely fit the ‘weak muscle’ idea. Direct inguinal hernia differs from the indirect variety in that the peritoneal sac has pushed forwards through weak muscles in the inguinal region rather than down the canal. It is more common in older men and, rather fewer, older women but there is no age at which it becomes the exclusive type of groin hernia; I have seen large indirect herniae in 80 year olds and a few direct herniae in 20 year olds; you just can’t tell.

What difference does the type of hernia make? But does it matter? Certainly not from a therapeutic point of view, these days, because all herniae are repaired in the same way – using the nontension mesh technique. It used to make a difference when herniae were repaired by stitching and there were different techniques for different types of hernia. The modern operation, though, is very straightforward and can even easily be accomplished under local as well as general anaesthetic. In essence, the hernia is pushed back and a piece of mesh placed over Hernia mesh the posterior wall of the inguinal region to cover completely the whole area. The mesh is permanent and becomes incorporated in scar tissue which is tough so recurrences are far less common than they used to be in the days when we used stitches which could ‘cut out’. In the very best hands recurrence rates are around 0.1% although most surgeons accept 1% or 2% recurrence rates.

The repair and recovery

left inguinal canal

This repair can be accomplished through an inguinal incision, the so called ‘open approach’, or from within the abdominal cavity using laparoscopic, or keyhole, surgery and there are pros and cons for each approach. After any type of hernia repair I would expect most patients to be back at all their normal daily activities by about two weeks, or even more quickly after a laparoscopic repair. I am sorry to say that many doctors have not yet realised

this fundamental change from the days when herniae were suture repaired, even though this operation has been commonplace for more than ten years. Patients must be warned about bruising and swelling but a competent nontension mesh hernia repair should not remain painful for long unless a nerve has become inadvertently trapped.

Does it matter whether the hernia is reducible or not? No. Smaller herniae are almost always reducible but probably at greater risk of strangulation because their necks are tighter and large herniae become irreducible even though their necks have been widely stretched. Whether or not the groin swelling can be pushed back has no bearing on whether it will obstruct or strangulate now or later.

What is the liability and causation?

Inguinal incision

Laparoscopic surgery

What are the legal implications? I have mentioned the dilemma of the aetiology of herniae. But even if this is so, and it applies less obviously to direct inguinal hernia and many other types, the fact is that the patient may have continued for many years before developing his/her hernia or may not have developed it at all, had it not been for that exceptional straining episode shortly before it developed. A question which is more difficult to answer is how soon after a strain must a hernia appear for the one to be considered to have led to the other? After all, most herniae occur without any obvious predisposing efforts and both straining and herniae are very common so coincidences must be expected. My opinion is that something – discomfort, pain or an actual lump – should have been noticed by the client within, say, 48 hours. In the cases I see this is usually what happens and a patient, for such he/she now is, has visited his/her general practitioner and the problem is noted in the medical records. It may not yet be definitely diagnosed as a hernia but at least there is a note about a groin strain. So what about that alternative diagnosis?

Is a groin strain different?

There are many myths about hernia – straining, time off work, pain and dangers. Hernia and straining are both common. Both usually have no severe consequence. If you believe in coincidence all herniae just happen. But I am convinced straining can cause a hernia and if this was due to unexpected, unusual and/or unplanned activity at work the employer may be liable. I am also convinced that the recovery from the modern mesh operation is rapid and there is no reason to ‘take it easy’ or avoid lifting and straining, even straightaway (but the repair will be too tender to allow anything too strenuous for the first few days!). Surgical folklore is stubborn and slow to change. If a patient is advised to stop working what else is he expected to do? And if he is advised to take six weeks off work after his repair that is the surgeon’s or general practitioner’s mistake, not the patient’s. Finally, since recurrence is now so unusual continuing post-operative pain has become a problem. There should be no great pain after the first few days but a chronic neuralgia type pain does occur due to inadvertent and largely unavoidable bruising or crushing of nerves during the repair. It eventually settles but this can take many months, even a year, and is necessarily a difficult time for the patient. There are manoeuvres to help, ranging from analgesic tablets to further surgery to release scar tissue.

Conclusion So now you know. One of the commonest surgical problems is not straightforward. And I didn’t, for a moment, imagine you would have thought otherwise! q

A muscular groin strain can be difficult to differentiate from a small hernia. Groin strains are usually related to prolonged activity, particularly sporting activity, rather than a sudden strain, but not always. They are due to tearing of muscle or ligament fibres and only rarely will there be an associated hernia. They can cause a great deal of morbidity, over a period of many months, but they do usually settle without surgical intervention. For a select few that do not settle there is an operation, sometimes called ‘Gilmore’s groin repair’, in which the muscle and ligament at the top of the thigh is reinforced with stitches or staples. But you need to know that there is some disagreement in surgical circles about whether ‘Gilmore’s Groin’ is or is not a real diagnosis and how much the operation is no more than a placebo.

Are herniae painful? Groin strains are always painful. But are herniae? The large majority of herniae, at all sites, are not painful. They are just swellings which usually disappear with recumbency and reappear and enlarge with activity. Maybe 10% of inguinal herniae are painful and, by and large, this tends to be the smaller ones which are more likely to be nipped by stronger muscles before they have been stretched around a larger defect. There is no reason to stop working or lifting just because you have a hernia – it usually does not increase the pain and it does not increase the risk of strangulation. Even if the hernia enlarges this makes little difference to the mesh repair.

Are there any risks? Yes. I believe all herniae should be repaired as soon as is convenient because they all, large and small, risk strangulation. A strangulated hernia is one where a bowel loop has become so compressed at its neck that blood can no longer flow through its blood vessels. And any tissue without a blood supply will die unless the flow is restored soon, so this is a surgical emergency. There is a stage before strangulation when the hernia is merely obstructed but this, too, requires an urgent surgical opinion before it develops into a full-blown strangulation. There seems to be no obvious reason why a hernia should suddenly strangulate; it can happen during sleep or whilst working.

sound case for noise induced hearing loss Establishing a

by Hugh Wheatley NOISE-INDUCED HEARING loss is a relatively common complaint in the elderly population and is caused by excessive exposure to noise. The noise can be from any source, but hearing damage claims

usually relate to noise from an industrial source - frequently from exposure occurring in the days before ear protection was mandatory. In order to qualify for compensation the claimant must have a demonstrable hearing loss and also a history of noise exposure. Current legislation dictates that exposure to any ambient noise over 85 decibels for eight hours requires mandatory use of ear defenders. Due to the nature of the decibel scale, a three decibel increase in sound intensity will halve the amount of time that noise exposure is allowed; for example, 88 decibels would only allow 4 hours of exposure, 91 decibels is 2 hours, and so on. When assessing these claimants, it is essential to ensure that there is some hearing loss, and also to note their employment record or history of noise exposure. The employment record can usually be garnered from the National Insurance Contributions Schedule. Most noiseinduced hearing loss should be bilateral, except in those who have had noise exposure from firearms use, when this is normally unilateral. A past history should be logged, including any hearing loss risk factors, such as past ear disease or other systemic illnesses such as meningitis or renal failure. When examining the claimants, they usually have normal-looking ears with no other signs of ear disease. The mainstay of investigation

and assessment is with pure tone audiometry. This should be carried out in a soundproof booth by a trained audiologist according to the British Society of Audiology Standards. When looking at the audiogram, there is a characteristic dip at 4 kHz suggestive of noise-induced hearing loss. The audiogram can then be analysed and there are two formulae that can be applied to it. The first of these is the DSS formula, which will give a hearing loss in decibel terms of noise-induced hearing loss over and above that which is expected due to age. This has a bias towards the better hearing ear. The other formula is that as described in the papers by King, Coles and Luttman, which gives a percentage hearing loss over and above that which would be expected for age-associated hearing loss.

The final report should cover the claimant’s history, history of the hearing loss, and how the disability affects the claimant. It should also cover the history of noise exposure, which is normally employmentbased. The audiogram should be appended, together with the calculations of hearing loss. There are many causes of hearing loss and most claimants who present with a claim for noise-induced hearing loss will be the elderly, and will therefore naturally have some hearing loss due to age (presbyacusis). This should be detailed in the report and the hearing loss should be quantified according to the formula outlined briefly above. This report should also deal with any past medical or audiological history that could contribute to a hearing loss. q

A 21st century disability by GERARD REILLY DAMAGE TO HEARING from exposure to noise remains a common problem in the 21st century, despite the regulation of occupational noise exposure in most developed countries. In the UK, approximately 170,000 people suffer deafness, tinnitus or other ear conditions as a result of exposure to excessive noise at work. The resulting hearing loss cannot be cured, but is preventable. Exposure to excessive noise levels leads to a temporary hearing impairment which can go on to become permanent if noise exposure continues. The damage depends both on the level of noise and its duration. It is thought that equal ‘doses’ of noise will cause the same degree of damage. Therefore exposure to high intensity noise for a short period may cause the same damage as prolonged noise at a lower level if the ‘doses’ are equivalent. Damage from excessive noise exposure typically affects the ability to hear some of the higher frequencies first, e.g. at 4Kz, but as exposure

continues, the ability to hear other frequencies is also affected. The hearing loss may not be noticed in the early stages but as the hearing worsens, individuals usually complain that they have difficulty understanding speech, especially in the presence of background noise. The hearing impairment is often associated with the development of tinnitus, which itself can be as disabling as the hearing loss. The ageing process also affects hearing and it is important to take this into account when assessing the causes of hearing loss. The Control of Noise at Work Regulations (2005) which came into force on 6th April 2006, and which supersede previous regulations, govern the limits of noise exposure on a daily or weekly basis and also advise about the provision of hearing protection in the workplace. (see http://www. opsi.gov.uk/si/si2005/20051643.htm). If the recommendations of these regulations are adhered to, damage to hearing from exposure to excessive noise should become a thing of the past. q

Profiling...

Graham J. Cox

MB BS BDS FRCS (Eng) FRCS (ORL), consultant surgeon, expert witness

A CONSULTANT ENT surgeon at the John Radcliffe Hospital in Oxford and a Macmillan Head and Neck Surgical Oncologist for fifteen years, Graham J. Cox MB BS BDS FRCS (Eng) FRCS (ORL) has served as an expert witness in many industrial noise induced hearing loss cases, as well as in both private and NHS Trust medical negligence cases. Mr Cox has contributed to national guidance in head and neck surgical oncology, has advised the National Cancer Action Team and NICE in this area and has made numerous presentations at international specialist meetings and workshops. He has a particular interest in quality management in medicine and is a Specialist Associate of the General Medical Council. He has led Deanery Quality Assurance visits and has served as Vice Chair of the Specialist Advisory Committee in ENT for the surgical Royal Colleges. As such, he has been involved in curriculum development in ENT surgery, and in setting standards in post graduate medical education. q

Putting legal issues under the microscope

– forensic medicine FORENSIC MEDICINE is the branch of medicine concerned with the resolution of criminal or civil legal issues by the application of scientific medical knowledge. The specialty of forensic medicine is often referred to as legal medicine in Europe and in Spanish-speaking countries. One branch of forensic medicine is forensic toxicology, which deals with the investigation of toxic substances, environmental chemicals or poisonous products. Forensic toxicology is actually a mix of many other scientific disciplines such as chemistry, pathology and biochemistry. It also shares ties with some of the environmental sciences. Forensic toxicologists perform scientific tests on bodily fluids and tissue samples to identify any drugs or chemicals present in the body. As part of a team investigating a crime, a forensic toxicologist will isolate and identify any substances in the body that may have contributed to the crime, such as: alcohol; illegal or prescription drugs; other chemicals; poisons; metals and gases, such as carbon monoxide Working in a lab, the forensic toxicologist performs tests on samples collected by crime scene investigators. They use highly sophisticated instruments, chemical reagents and precise methodologies to determine the presence or absence of specific substances in the sample. The field of forensic toxicology has grown to include drug testing for employers, testing of animal samples for wildlife criminal investigators, testing for ‘date rape’ drugs and performance-enhancing substances. In the case of drug misuse in the workplace, drug misuse can harm

the misuser both physically and mentally and, through the misuser’s actions, other people and the environment. Drug misuse can be a serious problem not only for the misuser but also for the business where they work and, sometimes, for their coworkers. The possession of some drugs is illegal, exposing the misuser to the risk of criminal charges as well as causing harmful effects to their health. An employer would be breaking the law if they knowingly allowed drug-related activities in their workplace and failed to act. Employers have a general duty under the Health and Safety at Work Act 1974 to ensure, as far as is reasonably practicable, the health, safety and welfare at work of their employees. They also have a duty under the Management of Health and Safety at Work Regulations 1999, to assess the risks to the health and safety of their employees. If an employer knowingly allows an employee under the influence of drug misuse to continue working and his or her behaviour places the employee or others at risk, then the employer is breaking the law. Employees also have a legal duty to take reasonable care of themselves and others who could be affected by what they do at work. Drugs can affect the brain and the body in a number of ways. They can alter the way a person thinks, perceives and feels, and this can lead to either impaired judgement or concentration. Drug misuse can also bring about the neglect of general health and well-being. This may adversely influence performance at work, even when the misuse takes place outside the workplace. Forensic toxicologists also work on cases involving environmental contamination, to determine the impact of chemical spills on nearby populations. Investigators rely on the forensic toxicologist to make reliable conclusions about the impact a specific amount of a specific substance would have on a particular individual. q

Take a step in the right direction

- call an expert

A PODIATRIST IS qualified by their education and training to diagnose and treat conditions affecting the foot, ankle and related structures of the leg. In the UK, individuals may not use the title 'chiropodist’ or ‘podiatrist’ unless they are registrants of the Health Professions Council (HPC). They are protected titles and their use by non-registrants is unlawful. This protection extends to titles including the adjectival forms e.g. ‘podiatric surgeon’ or ‘chiropody practitioner’. Such registration is normally only granted to those holding a specialised Bachelors degree or Diploma in podiatry from one of the 13 recognised schools of podiatry in the UK. The scope of practice of UK podiatrists on registration after their degree in podiatric medicine includes biomechanics, podopaediatrics, surgery, orthotics, high risk patient management and sports injuries. Because podiatrists treat such a vast array of foot and lower limb problems, the scope for medical error is high. Take diabetic foot care, for example. Common reasons for medical negligence litigation in this area include failure to: assess the patient adequately; explain reasons for interventions; obtain informed consent; take action when patients did not attend appointments; educate patients; request necessary investigations; make timely / appropriate referrals and provide adequate treatments. q

Specialist in forensic podiatry and biomechanics A PODIATRIST AND specialist in gait/walking, pathomechanics, biomechanics and general anatomy, David G. Blake B.Sc.,M.Ch.S.,S.R.Ch. is the principal podiatrist at the Nuffield Hospital Wolverhampton, in addition to providing medico-legal reports. He routinely uses slow motion and freeze frame digital video camera equipment to analyse gait clinically to assess and diagnose anatomical and skeletal conditions. Forensic podiatry and CCTV footage analysis are key areas of his practice. Mr Blake is a preferred provider of podiatry services to West Midlands Police (Occupational Health). He has also provided a number of forensic podiatry reports and acted as an expert witness for Greater Manchester Police specifically in murder inquiries. He has presented his findings in Inner Crown Court, London on behalf of the defence. His last two cases have resulted in successful prosecutions on behalf of Greater Manchester Police/CPS. Legal precedent of CCTV/gait analysis started at The Old Bailey in 2000 and personal acceptance of Mr Blake’s specialism as being deemed scientific was given in English Crown Court in 2009. Mr Blake has been practicing for 16 years, 10 of which have been spent at the Nuffield Hospital Wolverhampton. q

Gynaecology procedures top list of medical negligence claims A HIGH PROPORTION of all medical negligence compensation claims in the UK involve errors in obstetrics and gynaecology procedures. Gynaecological errors range from delays in confirming pregnancy and mis-diagnosing genital cancer to a plethora of injuries through mismanagement of surgical instruments and unnecessary operations. As this field of medicine is so complex and involves many different disciplines, procedures and surgery, the possibility of medical negligence is high. Mistakes made during ante-natal care and birth can also lead to serious problems – and in some cases, even the death of an infant. There can also be failure to detect serious abnormalities of the unborn baby despite scanning. The Royal College of Obstetricians and Gynaecologists estimate that over 85% of women who have a vaginal birth will suffer some degree of perineal trauma and of these 60-70% will need suturing. Perineal trauma affects women's physical, psychological and social well-being and can disrupt breast-feeding, family life and sexual relations. It is vital for women's future well-being that injuries to the perineum are correctly identified as quickly as possible. Other injuries can arise from different types of gynaecological treatment, including contraceptive procedures, termination of pregnancy and surgery. Side-effects relating to injected hormone contraceptives may also occur – and where contraceptive devices are fitted or termination occurs, there may be perforation of internal organs. In some cases failure to diagnose certain conditions, such as cervical cancer, can have tragic consequences. A compensation claim can also arise in ‘wrongful birth’ cases, where a baby is conceived despite sterilisation or other contraceptive procedures. Side-effects relating to injected hormone contraceptives may also occur – and where contraceptive devices are fitted or termination occurs, there may be perforation of internal organs. The most common types of gynaecological claims arise from complications associated with surgery. Common gynaecology errors include: • Unnecessary hysterectomies • TVT (Tension Free Vaginal Tape) damage to obturator nerve • Delayed diagnosis of cervical cancer and smear test errors • Keyhole surgery (laparoscopy) errors • Nerve damage • Retained swabs and retained instruments • Damage to organs (such as the bladder, bowel and uterus) particularly during Caesarian section • Failing to notice damage to organs (such as the bladder, bowel and uterus) • Episiotomy in the wrong place and inadequate repairs to episiotomy and tears • Failure to diagnose third degree tears after childbirth • Mistakes leading to hysterectomy • Injury to bladder, bowel or uterus during hysterectomy q

Medicolegal Issues in

Laparoscopic Surgery by JAMES D EVANS LLM MB BS MD FRCS(Eng) FRCS(Gen-Surg) OVER THE PAST two decades, there have been rapid developments in medical technology, which have facilitated the ability to perform surgical operations using minimally invasive or laparoscopic (‘keyhole’) surgery. Modern laparoscopic equipment including high definition systems, provide the surgeon with an excellent view of the relevant anatomy. ‘Keyhole’ surgery has many advantages for patients in terms of a rapid recovery from surgery, less post-operative pain and better cosmetic results. Nevertheless, laparoscopic surgery is associated with specific risks and complications which are only seen in minimally invasive surgery. These may be in addition to known complications associated with traditional open surgery. Several factors influence the outcome of clinical negligence claims in relation to laparoscopic surgery.

Complications during Access to the Abdomen The first stage common to almost all laparoscopic abdominal procedures involves gaining access to the abdominal (peritoneal) cavity and insufflating the abdomen with carbon dioxide (pneumoperitoneum). This can be achieved by use of either the Veress needle or by open cut down to insert the first port into the abdomen. Although many general surgeons now prefer the open technique, both are acceptable if performed safely and in the case of morbidly obese patients undergoing laparoscopic weight loss surgery, the use of the Veress needle is the preferred technique. A number of complications may arise during access to the abdomen so the first laparoscopic port must be inserted in a careful controlled manner. In diagnostic laparoscopy 75% of cases of alleged clinical negligence relate to bowel or vascular injuries. Damage to the small bowel may occur during placement of the first port but if this is recognized and treated correctly, a claim for negligence is unlikely to succeed. In contrast, injury to major blood vessels such as the aorta, inferior vena cava and iliac vessels usually indicates a failure of the surgeon to use adequate care when inserting the port as these structures are situated on the back of the abdomen (retroperitoneal). In this situation, major life threatening bleeding may occur and claims cannot usually be defended. Once the first laparoscopic port has been inserted, the surgeon must ensure that they have an adequate view before inserting further ports under direct vision. For this reason, if a bowel or major vascular injury occurs during insertion of the second or subsequent ports, any claim for negligence is likely to succeed.

The Nature of the Injury

The very nature of an injury sustained during a laparoscopic procedure has a major influence on whether a claim is successful or not. One of the commonest general surgical procedures undertaken in the UK is laparoscopic cholecystectomy for the treatment of gallstones. Often now performed as a daycase, this has become the standard technique, almost completely replacing the traditional open operation. The most serious complication of laparoscopic cholecystectomy is injury to the bile duct which accounts for almost half of clinical negligence claims in relation to this procedure. Injuries vary in their severity but may have serious and life-long consequences for the

patient. Major surgery is usually required to repair the injury and despite a successful repair, the patient will be at risk of complications in the future. The incidence of bile duct injuries has fallen over the past two decades, largely as a result of better training, but still occurs in approximately 0.3% of cases. A crucial part of a laparoscopic cholecystectomy is to clearly define the biliary anatomy before dividing any structures. If the anatomy is not clear, or significant bleeding occurs which obscures the operative field, the surgeon must convert to an open operation which is necessary in up to 5% of cases. Criticism may arise where a surgeon fails to convert to an open operation as a result of which damage to major structures occurs. Bile duct injuries may not be recognised before the patient is discharged home but where an injury is recognised immediately, the surgeon must seek advice from a specialist hepatobiliary surgeon as correct surgical repair has a significant effect on long-term outcome for the patient. A bile duct injury implies that the anatomy has not been adequately displayed during the operation. This represents a breach of duty of care and any claim for negligence, is very difficult to defend.

Delay in the Management of a Recognised Complication In other cases, it is not the nature of the complication, but how that complication is managed, which influences the outcome of a claim. Post-operative bleeding is a recognised complication of any laparoscopic operation. Bleeding may occur from the operative site such as the cystic artery in laparoscopic cholecystectomy or the appendicular artery in laparoscopic appendicectomy. Alternatively, significant bleeding may occur from the port sites on the abdominal wall. If bleeding is recognized early, the patient returned to the theatre and bleeding controlled, a claim for negligence is unlikely to succeed. If, however, there is a failure to recognise bleeding and to treat it appropriately, this may be life threatening and result in a successful claim for negligence. In laparoscopic cholecystectomy, the second commonest reason for a medicolegal claim is a bile leak. This is a recognised complication and does not necessarily imply that the surgeon has performed a substandard operation. Indeed, if a bile leak is recognised and treated correctly, the patient should make a full recovery and a claim for negligence may not be successful. A major issue cited in many cases however, is that a delay occurs in the investigation and diagnosis of a possible bile leak which results in mismanagement of this complication. This may result in an increase in morbidity and even prove fatal. Failure to recognise and treat any recognised complication of laparoscopic surgery appropriately may represent a breach of duty of care and a clinical negligence claim under these circumstances is likely to succeed.

Experience & Subspecialty of the Operating Surgeon All surgery, whether open or laparoscopic, must be performed by appropriately trained surgeons. Surgeons in training must be

adequately supervised in a manner appropriate to their operative competency and experience. There have been several clinical negligence cases in which laparoscopic procedures have been performed by a junior doctor operating independently and unsupervised by a consultant. All trainee surgeons must be appropriately supervised until they have sufficient operative experience in a given procedure and have been assessed and deemed competent to undertake that procedure independently. Increasing sub-specialisation within general surgery, means that consultant surgeons must also be able to demonstrate where required that they audit their own results and that they undertake laparoscopic procedures with sufficient frequency. In the case of laparoscopic cholecystectomy, it is recommended that surgeons should undertake a minimum of 40 procedures per year (NHS Institute for Innovation and Improvement 2006) which means that this operation will increasingly only be undertaken by specialist upper gastrointestinal or hepatobiliary surgeons.

The Impact of Clinical Guidelines There are a vast number of clinical guidelines in medicine, some of which have potentially very important medico-legal implications. Acute pancreatitis is a very common acute surgical emergency which is most commonly due to gallstones. Guidelines issued by the UK Working Party on Acute Pancreatitis in 2005, established that patients diagnosed with acute gallstone pancreatitis should have definitive treatment of their gallstones within two weeks of discharge from hospital or preferably during the same hospital admission. There have now been a number of successful medico-legal claims in relation to patients discharged after an episode of acute pancreatitis, who have subsequently died from severe gallstone pancreatitis whilst on the waiting list for a cholecystectomy. Many hospitals in the UK however, struggle to meet these guidelines often due to a lack of resources and an interval of several weeks or even months may pass before a laparoscopic cholecystectomy is performed, during which time the patient is at risk of another attack of pancreatitis which could be fatal.

Negligence Due to Failure of Informed Consent Any patient undergoing laparoscopic surgery must be consented for the possibility of conversion to open surgery. The most common complication of all laparoscopic procedures is damage to the bowel, cited in approximately one third of claims reported to the NHSLA. Although the risk is only 1 in 1000, if a bowel injury occurs the consequences are potentially very serious with the need for major surgery to rectify the problem and potential long term sequelae. Furthermore, in patients who have a history of previous abdominal surgery, the risk of bowel injury is significantly higher and this must be emphasized to the patient during consent. Similarly, in laparoscopic hernia repair, surgeons must have an adequate discussion during the consent process explaining the advantages and disadvantages of both laparoscopic and open hernia repair. The laparoscopic operation is associated with a small but definite risk of very serious complications such as major vascular or bowel injury which in some cases has resulted in death.

Conclusions The increasing utilization of â&#x20AC;&#x2DC;keyholeâ&#x20AC;&#x2122; surgery has been paralleled by a steady rise in the proportion of clinical negligence claims in relation to laparoscopic surgery. The vast majority of claims are settled out of court and expert witnesses have a vital role in this process. q â&#x20AC;˘ Mr Jim Evans is a Consultant General and Upper Gastrointestinal Surgeon at the Countess of Chester Hospital NHS Foundation Trust and Honorary Consultant Upper GI Surgeon at the North East Wales Trust. His medico-legal practice is based at Nuffield Health, The Grosvenor Hospital, Chester.

Pitfalls in the diagnosis of

head and neck cancers by MR GRAHAM COX MB BS BDS FRCS(Eng) FRCS(ORL) Consultant ENT surgeon and Macmillan Head and Neck Surgical Oncologist, Oxford.

HEAD AND NECK cancer is the sixth commonest cancer in the UK with about eight thousand new cases each year. Just as the treatment of these difficult cancers is complex, the assessment of potential medical negligence in this field requires an in-depth understanding of the behavior, treatment and effects of this challenging disease.

Graham Cox is Consultant ENT surgeon at the John Radcliffe Hospital in Oxford and a Macmillan Head and Neck Surgical Oncologist. He has contributed to national guidance in head and neck surgical oncology, and advised the National Cancer Action Team and NICE in this area, making numerous presentations at international specialist meetings and workshops.

The incidence of head and neck cancers is increasing rapidly, probably due to lifestyle change increasing exposure to known risk factors such as alcohol, and also to viral causes such as exposure to the human papilloma virus. The disease has had increased public exposure with a number of celebrities such as Michael Douglas, John Diamond, Alex Higgins Michael Douglas, one of a host of celebrities to suffer from and Anthony Menghella, papilloma virus developing the disease. Like many cancers, the survival rate is often increased if the diagnosis is made early, and if the disease is identified at an early stage. The treatment necessary is often less radical with fewer long term side effects compared to that required for late stage disease.

â&#x20AC;&#x153;many of the symptoms caused by head and neck cancers are similar to those caused by common problems...â&#x20AC;?

Although the need to identify the disease at an early stage is well recognised, and pathways are available for prompt referral for a specialist opinion, many patients are still referred to specialist centres with advanced stage disease which can be difficult to treat, and has a worse prognosis. One of the reasons for this, is that many of the symptoms caused by head and neck cancers are similar to those caused by common problems, or variants of symptoms much more commonly due to benign causes. Symptoms such as hoarseness, swallowing problems or mouth ulcers are common, but rarely are they due to cancer of the mouth, pharynx and larynx. There are however often differences in the pattern of the symptoms when there is a malignant cause which should give rise to suspicion of a serious cause. Some symptoms should however, result in a prompt referral from the onset. The guidance available for the public, dentists and GPâ&#x20AC;&#x2122;s should help prevent late referral; but all too often the advice is unheeded. Even when patients are referred appropriately, there can be delays in the diagnostic pathway in hospital departments, increasing the risk to the patient. Head and neck cancer is treated in specialist centres due to the

complexity of both the surgery and non-surgical treatment required to treat the disease. The necessary expertise required to treat the disease should also be utilised to assess the possible effects of delayed or missed diagnosis. Again the effects of delays are often difficult to assess, especially in respect to questions of causation. The cancers can behave differently depending on which site is affected, and due to subtle differences in the cancer behaviour which can vary from tumour to tumour. Providing a robust expert view is not always straight forward. q

Surgeons are able to remove head and neck tumors through the mouth

Factors in medical negligence claims MEDICAL NEGLIGENCE claims involving cancer often involve one of the following factors: • Failure to diagnose – this can be due

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to a doctor either missing or misinterpreting symptoms or misinterpreting test results

Delay in diagnosis – this can be caused by delayed referrals to specialists, delays in carrying out a biopsy or failure to act quickly enough in reaction to test results, as well as many other factors

Misdiagnosis – some patients are diagnosed as having cancer when they do not. This can lead to them having to endure difficult and painful treatments such as chemotherapy unnecessarily

Compensation – how much is an injury worth?

MORE AND MORE people are applying for accident injury compensation because to receive compensation from an accident that was not the fault of an individual is their legal and civil right. However, the law is complex and expert guidance is needed on many aspects of this subject. Basically, an individual is entitled to be compensated for all the losses that they have suffered as a result of an accident for which they were not liable. This may include damage to clothing and property (including a car), loss of earnings and any insurance excess which they may have. In addition, compensation should be paid for the pain and suffering caused as a result of the accident and the the consequent injury. Finally, it is also possible to claim for any future losses suffered, such as an inability to work and loss of promotion prospects. Lawyers generally split the amount of compensation into two separate categories called ‘general’ and ‘special’ damages. Basically ‘special damages’ are all those which are easily quantifiable - such as loss of earnings, medical expenses, taxi fares, ruined clothes. ‘General damages’ are the more difficult to prove as these have to be ‘assessed’ – ie some monetary value has to be placed on the pain and suffering that an individual has gone through, as well as their possible future loss of earnings and how the injury may affect their general lifestyle in the future. q These are some estimates of what is commonly awarded for different types of injuries. Additional compensation may be paid for other related expenses and loss of earnings.

Ankle Injury: For fractures and ligamentous tears resulting in moderate disability such as difficulty walking on uneven ground or on stairs: £6,500 to £13,500. Severe injury involving a long period of treatment and some permanent disability: from £15,000 to £25,000. Foot Injury: Minor: £1,000 to £6,000. Moderate: £3,000 to £12,500. Severe: £12,500 to £37,000. Loss of foot: One foot: £46,000 to £60,000. Both feet: £93,000 to £110,000. Knee Injury: Lacerations, twisting or bruising injury with complete recovery: up to £3,250. Ongoing symptoms such as aching/discomfort/occasional pain: up to £6,500. Torn cartilage or meniscus, dislocation, ligamentous damage; injuries resulting in minor instability or weakness: from £7,000 to £13,000. Severe injuries: £13,000 to £52,500. Leg Injury: Simple fracture of tibia or fibula: up to £5,000. Severe leg injuries including simple fracture of femur: up to £7,000. Fractures where recovery is incomplete: from £8,500 to £14,000. Permanent disability, requiring crutches, limited walking ability: £25,000 to £75,000. Degloving injury, gross shortening: £42,000 to £100,000. Loss of leg: Below the knee: £45,000 to £100,000. Above the knee: £47,000 to £150,000. Hip & Pelvis Injury: Minor injuries including fractures which result in no permanent disablement up to £6750. Severe injuries needing hip replacements: up to £13,000. Shoulder Injury: Minor injury such as soft tissue damage causing considerable pain but recovery almost complete within one year: from £2,000 to £3,750. Moderate injuries such as frozen shoulder causing limitation of movement and discomfort for up to two years: £3,750 to £6,000. Dislocated shoulder causing pain in shoulder and neck, aching in elbow, weakness of arm and hand: from £6,000 to £9,000. Arm Injury: Simple fractures with fast and complete recovery: £1,000 to £3,000. Serious fractures with good recovery: £9,000 to £19,500. Serious fractures where there is significant or permanent disability: from £19,500 to £29,000. Loss of arm: Below the elbow: £52,500 to £60,000. Above the elbow: £60,000 to £75,000. Loss of both arms: £132,500 to £165,000. Neck Injury: Minor whiplash injury (recovery within two years): £750 to £4,250. Moderate Whiplash injury: £4,250 to £7,750. Severe neck injury: up to £82,000. Head Injury: Minor injuries involving no brain damage: up to £7,000. Minor brain damage where a good recovery has been made but symptoms such as poor concentration and memory problems continue: up to £23,500. Moderate brain damage: £23,500 to £120,000. Moderately severe brain injury: £120,000 to £155,000. Very severe brain damage: £155,000 to £220,000.