Expert Witness by DMMonline

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contents IN THIS ISSUE 4 5 5 14 34

Opening Statement LASPO limps through last mauling in Lords Fee cuts deter experts, says Consortium These experts can find out what caused the crash and burn Forensic Science Service ends its days in Wetherby

DIGITAL FORENSICS 7 7

Security concerns halt moves to next generation data centres What’s in your wallet – and can it be accessed?

FINANCIAL 8 9

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GAAR: accountants welcome consultation Plans, trains, automobiles (and the lack thereof) – the potential for the Olympics to disrupt business Dispute cases on VAT HMRC to begin charging costs EC requests UK to amend tax rules How do you find a business valuer?

ROAD TRAFFIC 15 15

Car hire fraud allegations sent to CPS M5 crash stirs memories

17 17 19 19

Planning framework keeps it simple Court can set limit on expert’s assessment New book helps address a knotty problem RICS experts’ conference addressed by Lord Jackson

ANIMAL BEHAVIOUR 21 21

Dog attacks: solicitor calls for urgent Government action Horse’s death halts TV series

SCOTTISH LAW 23 25 27 28

Lord Justice Jackson’s Review – the Scottish perspective Scotland v England – the expert’s view Cross-border expertise Changing minds: making sense of conflicting expert psychiatric opinion

FAMILY & CULTURAL ISSUES 31

When should children be adopted and when should they remain with their current parent? Cutting fish with a machete: it’s a conflict of cultures

EXPERT CLASSIFIED 52 56

Expert witness classified listings Medico-legal classified listings

MEDICAL ISSUES 35 37 39 41 41 41 43 43 45 47 47 49 49 51 51

PLANNING & CONSTRUCTION

Neck and shoulder pain and computers Complex Regional Pain Syndrome Fractures – pitfalls and quandaries No hands-on treatment allowed, claim physios Sportsmen get the funniest injuries! RTA & personal injury expert is also a top sports injury specialist PIP implants – Commons Committee issues report Gunshot injuries catalyst for transplant advances Court ruling opens door for more mesothelioma claims Jackson LJ urges more use of ADR in clinical negligence cases Doctor who failed to diagnose breast cancer suspended Disabled twin wins multimillion pound compensation Study confirms high failure rate of metal-on-metal hip implants Ecstasy users have poor memories, says study ‘Padded cell’ school to close following naming

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Opening Statement

he reform of the civil litigation costs system and the accompanying guerrilla campaign in both Houses of Parliament are still dominating the legal world, as well as the cohorts of experts – soon to become, if the fears of some are realised, exexperts. Fees for experts have been cut to below what anyone with the experience and expertise to offer a definitive opinion would be prepared to put their reputation on the line for, particularly in London, and many NHS Trusts are warning that no-one is coming forward. That’s according to the Consortium of Expert Witnesses to the Family Courts, which issued a call for feedback in January. The solicitors themselves are feeling the pinch, too. Lord Justice Burton put it succinctly when dismissing the attempt by the Law Society to force a judicial review into the scrapping of solicitors’ fees for committals. He said: “Undoubtedly, this results in a substantially lower payment being received by the solicitor. That is the result, and the purpose, of the amendment order.” The other connected issue is the ‘review’ of Legal Aid. That element of LASPO has suffered 11 defeats in votes in the Lords. They won’t, of course, stick. We may have the unedifying spectacle of the Commons overturning an amendment passed by the Lords, proposed by one of this country’s most successful and best-loved Paralympians, to retain legal aid in clinical negligence cases involving children. You wonder if some of the most heart-rending instances of clinical mistakes would ever see redress if Legal Aid had not been available. One story ran at length on a local BBC news programme – that of a youth known only as ‘C’, who had been repeatedly shut in isolation in a room at the school he attended: a school run by the charity Scope, of all people. His mother was able finally to express her anger in public following the lifting of an anonymity order. She was also able to describe his progress since being set free, as it were.

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n the inside back cover of this issue you will find details of a brand new service available to solicitors throughout the UK in partnership with this publication. www.findaprocessserver.co.uk does exactly what it says on the tin – it marries up solicitors to process servers at the time they are needed and in the correct geographical area. The service is completely free of charge to solicitors and should help to make the whole process more efficient for them. It aims to overcome all the pitfalls and time constraints involved in appointing a process server as well as eliminating the need for the work to be subcontracted out.

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LASPO limps through last mauling in Lords

he Legal Aid, Sentencing and Punishment of Offenders (LASPO) Bill, the Government’s controversial overhaul of the legal aid and civil litigation systems, completed its perilous journey through the Lords, despite the Government suffering a near-record number of defeats. At the third reading stage of the bill a further two amendments were approved: the Lords voted by 232 votes for and 220 against to ensure that children are automatically entitled to legal aid and by 228 to 215 to retain legal aid for all clinical negligence cases involving children. Gold medal-winning Paralympian Lady Grey-Thompson said there should be no question of children being left to present cases on their own or being reliant on the exceptional funding test, according to a report in the Law Society Gazette. She said that the Government’s proposal to remove funding for children would remove children’s rights to challenge the state. The government has now been defeated 11 times by peers over the bill designed to save £350m from the legal aid budget, the second largest

Fee cuts deter experts, says Consortium

number of defeats in a bill ever. Labour’s Criminal Justice Act 2003 was defeated 17 times by peers. It is expected that most of the amendments will be overturned when the bill returns to the Commons. The Government is pressing on with the bill, despite strong resistance from the Lords and the legal profession. Recently a ‘triumvirate’ of legal organisations – the Association of Personal Injury Lawyers (APIL), the Law Society and the Motor Accident Solicitors Association (MASS) – put forward their own suggestions for potential amendments to the bill. Desmond Hudson, chief executive of the Law Society, said: “The Law Society remains convinced that the changes to the civil litigation system in Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Bill will harm access to justice. The changes will make it much more difficult for people to pursue claims for injury and loss caused by the wrong-doing of others. This is in no-one’s interests.” q

ollowing a call for feedback from solicitors on the effect of cuts to experts’ fees, made by the Consortium of Expert Witnesses to the Family Courts in January, that august body was cited in a speech on 5 March by Lord Beecham, proposing an amendment to the LASPO Bill. The amendment sought to oblige the Lord Chancellor to “…review the accessibility and quality of expert advice that is available for civil legal proceedings and ensure that this is maintained or improved…” His Lordship quoted the Consortium of Expert Witnesses to the Family Courts, as stating that only 7.5% of its members in London would be prepared to undertake work at the new rates – which in London are now lower than elsewhere in the country. “For example,” said his Lordship, “the Tavistock and Portman Trust has written to the consortium to say that the hospital could not provide the services of an expert witness at the permitted rate, which is £90 an hour. It says that £90 ‘may be a rate that a doctor working on a private basis would be willing to work at. We are required to pay a medical consultant at the nationally agreed rates, to pay national insurance and pension contributions, to provide admin support, office accommodation, clinical governance and a number of other functions which push the cost up to significantly more’.” (source: Hansard) q

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EXPERT WITNESSES IN FORENSIC COMPUTING •

Technology, Intellectual Property, Electronic/Electrical, Telecommunications (incl. Mobile Phone Forensics) & Fraud Investigation.

•

20 years experience in Expert Witness work giving evidence in the High Court, County Courts, Crown Court, Magistrates Courts and Sheriff Courts throughout the UK & Ireland.

•

30 years experience in the computer industry.

•

Experience of Legally Aided cases and LSC Funding.

•

Highly accredited forensic specialists, instructed in ground-breaking trials including; -

London Borough of Southwark v IBM Butler v Hersham Kingsway Hall Hotel v RedSky IT R. Benfield v Life Racing SAM Business Systems v Hedley & Co Watford Electronics Limited v Sanderson CFL Limited Horace Holman Group Ltd v Sherwood International Group Ltd

Midlands & North: 0845 226 0331 | London & South: 0207 096 3791 Email: enquiries@itgroup-uk.com | www.itgroup-uk.com

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Security concerns halt moves to next generation data centres

esults of a survey carried out by data security specialist Crossbeam have identified network security as the primary reason IT organizations have stalled in their efforts to move to cost- and energy- efficient ‘next generation data centres’ (NGDC’s). The survey of 529 IT professionals in large global enterprises and service providers was carries out to understand how far along they are in moving traditional data centres onto the NGDC model. NGDC’s are an evolution of the data centre, in which virtualisation and other technologies are deployed to create an environment that is more dynamic, efficient and flexible. This allows organisations to measure and respond to changing business requirements easily. However, among the three main technology areas of the data centre – application servers, storage infrastructure and network security – network security has not only become the greatest obstacle to the NGDC evolution, it is also bringing many NGDC efforts to a halt. According to the findings, 94% of respondents cite network security as the top reason why NGDC deployments are stalled, with virtually no progress anticipated in the next 12 to 18 months. A key driver behind the problem is that network security technology

remains mired in a ‘last generation data centre’ approach, due largely to a lack of understanding of how to virtualise network security infrastructure, as well as budgetary constraints. Michelle Bailey, research vice president for enterprise platforms and datacentre trends at IT market intelligence provider IDC, said: “Organisations need to adopt a virtualization strategy that enables network security infrastructure to be as dynamic as the rest of the environment, or they will wind up with many of the same cost and complexity problems that plague traditional data centres. While virtualising network security is still a relatively new concept, it is clear that IT organizations need to be making investments in the right expertise and technologies if they want to avoid repeating the security mistakes of the past.” Jim Freeze, chief marketing officer at Crossbeam, added: “For all the documented efficiencies and green benefits of the NGDC, virtualised environments are much more fluid by nature, which opens the potential for threats due to the ease with which applications and data can be moved around. IT organisations realise that bringing network security into the NGDC must be a priority, yet the survey results reveal a troubling lack of progress.” q

What’s in your wallet – and can it be accessed?

ollowing a report that the security of the Google Wallet system has been compromised on rooted Android devices, data security experts at specialist company AlienVault say that it’s a warning to smartphone users of the risks they run by storing access to their credit and debit card credentials on handsets for use `on the go.’ Jaime Blasco, head of labs at AlienVault, explained that Google Wallet is a recentlylaunched system of storing credit, debit and loyalty card data in the Google cloud, then using the smartphone as an authentication device while out and about. “Google Wallet will really come in to its own this summer during the Olympics,” he said, “as MasterCard and Visa ramp up their PayPass and PayWave NFC (near field communications) payment systems, which allow payments of under £10.00 to be completed with a wave of the card – or NFC-enabled mobile – in the same way that TfL’s Oyster card works. “Google Wallet protects access to the smartphone app using a PIN protection system, but it appears that researchers have developed a method of cracking the PIN that can be used by cybercriminals to perform fraud by using a brute force attack on the Android device.” He added that the crack only works on so-called ‘rooted’ devices, explaining that the weak link in the security chain is the storing of the Google Wallet PIN – effectively the keys to the owner’s credit and debit cards – on the smartphone itself, rather than in the cloud. If the device were to be stolen it would be vulnerable to attack. In a statement Google pointed out that the cracker had disabled its security system by ‘rooting’ the device. It added: “We strongly encourage people not to install Google Wallet on rooted devices and to always set up a screen lock as an additional layer of security for their phone.” q www.yourexpertwitness.co.uk

GAAR: accountants welcome consultation O ne of the key issues of Chancellor George Osborne’s Budget speech was his description of aggressive tax avoidance, as well as tax evasion, as ‘morally repugnant’. It formed the backdrop to an announcement of a consultation on the introduction of a General Anti-Avoidance Rule (GAAR). It is hoped the GAAR will close a number of loopholes by making a presumption that tax is payable. Frank Haskew, head of the tax faculty at the Institute of Chartered Accountants in England and Wales, said: “The introduction of a General Anti-Avoidance Rule (GAAR), sends a clear signal that the UK does not tolerate tax avoidance. It needs to be introduced, though, alongside radical tax simplification to help tackle the size of the tax code.” John Cassidy, tax investigation and dispute resolution partner at accountants PKF, explained: “In the light of two recent high-profile cases – the Treasury’s announcement last month that it has blocked the use of certain schemes at Barclays and the Court of Appeal decision late last year on a share scheme used by PA Holdings – the spotlight has been thrown back onto tax avoidance and it is not surprising that the Chancellor has announced plans to introduce a GAAR. “Anti-avoidance will remain a politically sensitive subject for at least the duration of the economic downturn, so this was not an issue that would quietly go away anytime soon. “The decision to begin a consultation on such a complex issue makes sense and gives everyone involved an opportunity to shape a set of regulations that can then be practically implemented. It's incredibly difficult to get right, so let's hope that the Treasury listens properly to genuine concerns raised by reputable consultees. The key is to establish a clear and unambiguous framework within which businesses and individuals can then operate with certainty.” q

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Plans, trains, automobiles (and the lack thereof) The potential for the Olympics to disrupt business by MISS SIMGE COLPAN & DR DARRELL JAYA-RATNAM, DIEMconsulting Ltd

s the London Olympics is fast approaching, the possible impacts of the games on businesses are becoming more evident. With 11 million spectators expected in London, Transport for London has already announced the anticipated changes and challenges on the transport network that will affect visitors, employees, customers, deliveries and suppliers. Even though it is apparent that all businesses in and around London will be affected throughout the Olympic and Paralympic Games, most businesses are still not fully aware of the challenges that lie ahead or prepared for the potential disruptions to their day-to-day activities. According to a recent survey published in the Financial Times, a third of the UK businesses have not yet made any preparations for the Olympics. They are, effectively, risking their efficiency by not considering the potential disruptions such as difficulties in the transport system, unavailability of staff and delays in delivery. For example, even though the retail industry is seen as a key beneficiary, 34% of the retailers surveyed have not prepared for adjustments to delivery schedules or the threat of staff absenteeism. Another sector that will be heavily affected during the Olympics is logistics, which is likely to have strong knock-on effects on a variety of businesses causing operational delays and revenue losses. According to the Freight Transport Association (FTA) only 5% of the logistics sector feels ‘totally prepared’ to cope with the increasing supply chain demands that are likely to occur. Transport for London has already warned businesses that there will be 100 days of disruption and that 20 million additional journeys are anticipated during the games. An independent study by Inrix also suggested that the traffic on main routes through central London would slow down to 12mph during the busiest times causing ‘traffic storms’. Despite all this, according to a new survey from the Confederation of British Industries (CBI) and KPMG, only 32% of the businesses feel prepared for the transport and logistics issues during the Olympics. Olympics sponsor BT has published a new survey suggesting that even though 40% of 1,200 businesses expect that their employees

will want time off or will be unable to get to work because of transportation difficulties, nearly 30% agreed that they have no plans to deal with the situation. The BT survey also showed that, despite the government warning businesses of the potential threat of a cyber attack, only 34% of businesses had assessed the impact of such a threat. Knowing, early on, the potential impacts of the Olympics on businesses, how much can clients expect from the companies they invest in? Central to the long-term success of any business is managing its relationships with clients by fulfilling its responsibilities. Businesses should be able to ensure that the interference of the games to their activities will be kept to a minimum by taking necessary precautions throughout all the levels. Unfortunately, Deloitte’s recent survey found out that in London 60% of the companies are not prepared for any Olympics related disruptions as they believe that the games will have minimal impact to their operations and only 16% have planned for possible interferences. The widespread lack of recognition of the potential challenges that the Olympics will impose on businesses indicates that many of them will be unable to respond to the changing circumstances and are likely to suffer some sort of negative impact. Two key threats to business are emerging. Firstly, the possible inability of companies to maintain their financial and operational efficiency throughout the games and, secondly, (and possibly more importantly) the potential inability of companies to manage their reputation for reliability and dependability. As businesses are strongly affected by the perceptions of their clients, the Olympics can either become an opportunity to prove their dependability and consistency through changing circumstances or a potential threat for remaining trustworthy to their clients by being seen as disconnected and incapable as a result of any delayed response. Below is a simplified version of a business model we developed to represent professional services companies, such as consultancies and insurance firms, to help identify the critical parts of their ‘business system’ with regard to revenue generation.

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The green elements are the key (people) drivers of the process. If the ability of these people (both staff and clients) to interact and get to where they need to be is affected, then critical parts of their business system (in red) slow down and revenue rates can go down. As each company’s ‘business system’ has unique requirements the key is to weigh up which part of the business system is the most critical and prepare to ‘protect’ that part. For example, for some consultancies it is the initial business development part of the system that requires the greatest amount of faceto-face client engagement in various locations in and around London, whilst the delivery of the output can be done in other locations or by staff working from home. For others, such as those involved in IT implementation or accountancy/audit, the key stages are delivery and sign off which might require more regular interactions with a range of different client individuals. In this case ad hoc plans to work from home may have no benefit and would slow work completion (and hence revenue) down significantly. Even for those parts of a company’s business system where alternatives such as home-working may appear practical, there is the secondary affect of lots of companies following the same plan. For example, if too many firms rely on home-working the increased number of internet users throughout the games is expected to cause connection problems, the effect of which might be worse than providing alternative means to get into work. The key to coping with the Olympics is to take a structured look at your company. What are the stages you need to keep working to ensure you can deliver and hence get paid, which of these stages is most important, what can you do to keep the wheels turning and, most importantly, if everyone else does something similar does your plan keep working? Simple visual models, such as in the figure shown, can help focus the management

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of the company on the key stages and act as a framework to think through the various knock-on effects they need to protect against. q • DIEMconsulting Ltd specialises in helping firms generate evidence on the impact of different strategies and investments in order to gain stakeholder support and buy-in. Since joining DIEM Simge Colpan has been responsible for analysing the strategic opportunities and risks for a range of companies particularly in the professional services and aerospace sectors. Dr Darrell Jaya-Ratnam is the founder of DIEMconsulting with 20 years experience in the modelling and simulation of business operations and finances. He also lectures on Corporate Strategy at Birkbeck College of the University of London and at the Defence Academy on the Role of the Board. He has also written on business modelling in a number of corporate risk publications.

Dispute cases on VAT by DEREK WILLIAMSON, Goddards Chartered Accountants

M Revenue often misunderstand or misinterpret aspects of VAT legislation and try to impose their will on businesses, which is where expert witnesses justify their existence. A good instance of this was charging VAT to opticians in the past for supplying glasses. After a long case culminating in a European Court directive in 1995, HM Revenue were forced to refund VAT to opticians. Had expert witnesses not been involved, it is unlikely that this case would have been won. Regrettably HM Revenue have now proposed to bring opticians supplying glasses wlthin the remit of the 20% charge in 2012. Another example was where accountants advised their clients that ‘tea cakes’ were cakes and so not subject to VAT. HM Revenue insisted that VAT had to be paid on them as they were ‘biscuits’. Expert witnesses rightly argued that they were in fact cakes and so in Aprll 2008 the European Court of Justice ruled that the VAT must be refunded. McVities used expert witnesses to argue that a Jaffa Cake was a cake, not a biscuit. HM Revenue argued that as it had a chocolate covering it was a biscuit. At the court, McVities sent in a 12” Jaffa Cake which convinced the court of the general cakeiness of the Jaffa Cake, and so it was designated a cake and zero rated. In Goodfellow and Stevens Ltd vs HMRC it was argued that chocolate violets and chocolate marzipan were cakes or other confectionery. The courts found that there were no objective tests

which could be applied to determine whether something is a cake, and so relied upon their idea of the impression which would be made upon the average man in the street. They found in favour of Goodfellows and the products were zero rated. In Everest Ltd vs HMRC, Everest offered a ‘cashback’ 180 days after the clients received a loan to pay for work done. HM Revenue argued that the two transactions were not related, Everest argued that they were, and that the ‘cashback’ was in effect a discount and so VAT should be reclaimed. Thanks to expert witnesses the courts found that the ‘cashback’ was in effect a discount, and so a reduction in the taxable amount. In lnnocent Ltd vs HMRC, lnnocent Ltd submitted a voluntary disclosure of overpaid VAT in 2007, believing that its smoothies were actually zero rated (ie food), on the basis that it was equivalent to 2 out of the 5 recommended daily portions of fruit and vegetables. Applying the tests applied in the Bioconcepts case, the court noted that smoothies were not mainly consumed to rehydrate or quench thirst. They also noted that they were drunk in coffee bars and so pleasant and easy to drink. ln short they were alternatives to tea, fruit juice or alcohol. As a result the courts found in favour of HM Revenue. Interestingly lnnocent Ltd failed to review existing case history when raising their argument. Expert witnesses would have brought this to their attention at an early stage, and so saved the high costs of the case. R

HMRC to begin charging costs

rom April HMRC will begin charging fixed costs on cases entered into the county courts in England and Wales. Fixed costs will be based on a sliding scale set by the Ministry of Justice and will be shown as 'solicitors' costs' on the relevant claim forms. These changes will align HMRC with that of other creditors as HMRC is currently unable to recover their costs in going to the county court and obtaining judgment. According to HMRC: “Recovering the cost of court action from the debtor means that compliant customers do not have to bear the burden of these costs. It will also introduce a level of fairness to all taxpayers by making sure that those who do not pay do not gain an advantage over those who comply with their obligations by paying in full and on time.” The Institute of Chartered Accountants explained: “At present HMRC can claim only the fees it has paid to bring the action in court. It cannot claim legal costs, such as its own costs in time and preparation to bring the action. “The level of costs will depend on the amount of debt to be recovered, with the maximum charge being £200. HMRC says it expects the average cost to be in the region of £87.” R www.yourexpertwitness.co.uk

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EC requests UK to amend tax rules

ncreasing numbers of British people are moving to other EU countries to take up residence, with many taking their businesses with them. A report by accountants Ernst and Young regarding a recent European Commission request to the UK rules on Capital Gains Tax may be of interest. The report, by Gillian Wild of Ernst and Young’s London office, states: “The Commission noted that the UK legislation at issue results in immediate taxation of unrealised capital gains in respect of certain assets when the seat or place of effective management of a company is transferred to another EU/EEA State. However, a similar transfer within the UK would not generate any such immediate taxation and the relevant capital gains would only be taxed once they have been realised. “The Commission considers that the UK has failed to fulfil its obligations under EU rules by maintaining these restrictive provisions. Exit taxes may breach the freedom of establishment principle as they make it more expensive to transfer a company seat or place of effective management to another Member State than to another location in the UK. “The Commission's request takes the form of a reasoned opinion (the second step of EU infringement proceedings). In the absence of a satisfactory response within two months, the Commission may refer the UK to the Court of Justice of the European Union.” q

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How do you find a business valuer?

henever a client asks “What’s my business worth?” the reply should be “To whom, and for what purpose?” As with any commodity, supply and demand come into play, but with a business it’s far more complicated. Supply and demand of capital, general economic conditions, even fashion – why was so much paid for dot.com companies which had never made a profit? And why did their value disappear when the bubble burst? And what about the special purchaser? To take an extreme example, in one of my family cases I was expert adviser to the wife’s legal team led by the then Nicholas Mostyn QC. The husband had an IT company in London which had but one product, a program for international currency dealing. It was in a desperate state – losing £1million a year, rent arrears of £½million, and the Revenue had a walking possession order for PAYE arrears of £¼million – yet the husband was in negotiation with a US company which had a whole suite of software for international banking but for this particular program. They needed it to complete their suite, and the husband negotiated a multi-million dollar sale of the company and a very well paid position for himself. My task was to advise the lady’s lawyers on the parameters of the husband’s negotiations without spoiling her position – she was a 50% shareholder – and the tax consequences. The outcome was highly satisfactory for all concerned. One would have expected the value of the company to be £nil, but with the ultimate special purchaser a very high value was achieved. Let’s talk about more mundane matters. Your client is getting divorced and the family business forms a significant part of the matrimonial estate. Or your client is a director of a company and has been excluded from management decisions, probably coupled with a claim for constructive dismissal. Or your client (or you?) has for many years been a partner in a professional firm, is coming up to retirement, and suspects that the continuing partners are not prepared to pay his entitlement. What do you do? In all such cases, and others, the value of the business, and your client’s part of it, must be determined. I have acted frequently as a mediator and as an expert determiner in such matters, but today we are concerned with my work as expert valuer. In family cases the expert is usually instructed to value each spouse’s shareholding, estimate the tax which would be payable on disposal of the shares, and say how much cash may be extracted from the company to aid a settlement. Traditionally there would be separate experts on each side, and I remember many happy experiences with Hildebrand documents and the like! These days, with judges’ preference for the SJE (so that they don’t have to strike a balance between opposing experts’ opinions of £15million as against £nil!) family valuations are less exciting, but no less worthwhile. And there are always the big cases where party experts are needed. A few months ago I was appointed expert by the husband to value his businesses in property development and construction services. An expert, in my view bending all the rules for the benefit of the wife, had valued the enterprises at about £1million. My view was that, with negative equity in the properties and a slippery customer list, the value was £nil. Because of the husband’s strained finances my instructing solicitor was taking monthly fees on an IOU, and would not be responsible for my fees, so I had to do the same. During the hearing, the husband said he was applying for an IVA. It failed, and

by CHRIS MAKIN

he went bankrupt. Good news: I was right with a value of £nil. Bad news: I didn’t get paid! In the commercial field, so often one of the founders of a company is elbowed out by others, and has to mount a claim under Section 994 of the Companies Act for unfair prejudice. Normally a ‘fair’ value is required, but what is fair? Is there, for example, a quasi partnership per Ebrahimi v Westbourne Galleries? Such matters need an experienced valuer. There are two essential requirements for your choice of valuer – a person who has experience and a deep understanding of business, and a person who has in effect a second profession as an expert. There is no point in choosing someone who knows about business, but who doesn’t know CPR or FPR, who can’t write an expert report in acceptable format, and who can’t survive cross-examination at trial. On the first requirement, I have been managing partner in a series of firms, starting as a sole practitioner and eventually becoming head of litigation in a national firm. When in general practice I acted for a huge range of clients, from market traders to plc’s. And my chapter on Loss of Profits for the Self-employed, which appeared in Kemp & Kemp, is available to you on request. I do understand business. On the second requirement, I was one of the first to be accredited as a forensic accountant and expert witness by the ICAEW, and I am fellow at The Academy of Experts, one of only 60 world-wide. And with over 70 court appearances, the witness box is a very familiar place! In this article I have said nothing about valuation techniques – about assets basis, dividend yield basis, earnings basis, P/E’s, and so on. There isn’t space, and I wouldn’t want my readers to go glassy-eyed. I have just written a helpsheet on business valuations for the ICAEW Forensic Group, and the basic checklist of information needed runs to five pages! Can we just take it that after many, many such assignments I do understand how to do a valuation, and that we can share some of these matters if time allows and if you are really interested? In the meantime, please bear in mind that for your expert assignment, valuation or other, my terms include an initial review of any case, with no charge if the matter does not proceed. So it costs you nothing to find out if I can help you unravel some of these mysteries. q • Chris Makin was one of the first 30 or so chartered accountants to become an Accredited Forensic Accountant and Expert Witness –www.icaew.com/forensicaccreditation/register. He is also an accredited civil & commercial mediator and an accredited expert determiner. He has given expert evidence at least 70 times and worked on a vast range of cases over the last 23 years. For CV, war stories and much more, go to www.chrismakin.co.uk. www.yourexpertwitness.co.uk

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These experts can find out what caused the crash and burn

ith over 400 years of combined experience as certified fire and explosion investigators, GexCon are the experts in the field. During the past 20 years GexCon’s experts have solved many mysteries surrounding explosions, some of which have led to legal proceedings, while others have been for industrial clients and local or national authorities. The company can also assist in determining the cause of fires, carbon monoxide poisoning and other accidents. GexCon has provided expert services for the investigations into the Piper Alpha disaster, the Buncefield explosion and the tragic crash of TWA 800, among many others. Their experts also assist in many national and international consultations post-accident and provide expert opinion and advice for owners, insurance companies and legal firms. Employing scientific and engineering principles, GexCon provides a wide array of services for the investigation and analysis of accidents. Their accident investigation and failure analysis services include: • Cause and origin of fires and explosion • Carbon monoxide issues (failures, migration, detection and exposure) • Failure analysis and mechanical system design • Hazard evaluation and ways to mitigate future accidents • Litigation support • Expert witness services Those services include site inspections, using state-of-the-art equipment to locate the origin and determine the cause of an explosion. That is possible through testing, analysis and modelling, and also using the industry-accepted computational fluid dynamics (CFD) software FLACS. In addition, terrorist blast effects and toxic gas cloud dispersions are simulated and their results are used to determine the additional requirement for mitigation, security and emergency planning. GexCon also has extensive experience in dust explosions, aerosol explosions and vapour cloud and gas explosions. Its licensed certified fire and explosions investigators (CFEI) and professional engineers have investigated numerous explosions, ranging from small vessel explosions to large explosions at chemical processing and petrochemical facilities. They have conducted numerous full-scale experiments on gases, vapours and dust including releases, dispersion studies and the ensuing vapour cloud explosions. Based on those experiments, GexCon developed the industry-recognized CFD software FLACS, which is capable of modelling releases, dispersion of vapours, ventilation in structures and ignition of flammable fuel-gas mixtures, to evaluate the flame progression and overpressures due to explosions. Unlike simple models, FLACS is a powerful tool that can be used to reconcile the predicted overpressures and dynamics of the explosion with the observed near- and far-field blast damage. It can therefore be used to evaluate the location of the ignition source, the release and migration of the gas or vapour, the strength of the explosion, the local flame accelerations, the resulting overpressures and the blast wave. GexCon staff have experience in designing and performing unique experiments to test fire origin and cause hypotheses. In addition to traditional fire investigation, they routinely use innovative techniques such as 3D surveying methods, photogrammetry, video and image analysis, and threedimensional computer animation, to resolve and explain complex problems. They are available at short notice to attend on site and secure the scene, in order to gather vital evidence before it is lost forever, which is often the case during incident clean up and restoration. q

GLOBAL EXPLOSION CONSULTANTS T: 01695 726 565 F: 0844 056 0506 E: info@gexcon.co.uk W: www.gexcon.co.uk West Lancashire Investment Centre, Maple View, White Moss Park, Skelmersdale WN8 9TG 14 14

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Car hire fraud allegations sent to CPS A

full-scale criminal investigation into allegations of fraud and perjury at a car hire procurement consultant moved a step closer in March when the Attorney General passed documents about the company, Autofocus, to the Crown Prosecution Service. According to the London Criminal Courts Solicitors’ Association, quoting The Times, the City of London Police’s fraud unit is thought likely to investigate. According to a report by the BBC, up to 20,000 court cases may have to be re-heard and seven expert witnesses who worked for the company could be jailed over allegations they lied in court about hire car prices. One of its former employees was given a suspended sentence for lying to the court about making calls to check the hire cost of a high-end car. The figures produced by the company, which has now gone into liquidation, were used by insurance companies to challenge prices charged by hire companies. A High Court judge referred the case to the Attorney General in February to consider whether to pursue criminal charges for contempt of court against the seven. Lord Justice Moses declared himself “flabbergasted” by the allegations, which, if proven, he said represented “industrial-scale perjury” and a “serious conspiracy”. The allegations concern the cost of hiring high-value vehicles for customers involved in road accidents, who are entitled to like-for-like replacement vehicles until their own is either repaired or ‘written off’. The costs involved can be substantial and insurers seek to limit that liability. Senior legal figures are reported as saying it is unusual for the Attorney General to be involved in a case such as this. q

M5 crash stirs memories

he horrendous crash on the M5 on 24 March, which has claimed the lives of two people, has rekindled memories of the events of last November on the same motorway, when seven people died in the worst road accident in the UK for 20 years. Following that crash there was speculation – including public comments by senior police officers – that a nearby firework display may have been a contributory factor. The resultant public outcry sparked a hate campaign that drove the owner of the pyrotechnics company involved from his home. In March a number of newspapers carried reports that an investigation had ‘cleared’ the display as the cause of the crash, although a statement from Avon and Somerset Constabulary denied that any statements had been made regarding the investigation, which would be made public “in the fullness of time”. The statement continued: “In the meantime, we would ask that people are sensitive to the feelings of the loved ones of those who were killed or injured in the collision and refrain from speculating about the cause.” q

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Planning framework keeps it simple T

he long-awaited publication of the new National Planning Policy Framework on 27 March predictably sparked a flurry of comment from both the construction industry and the green lobby. In an announcement by the Department for Communities and Local Government, the document was described as: “A new, simplified planning framework that better supports growth and helps create the homes and jobs that the country needs, puts unprecedented power into the hands of communities and helps protect and enhance our natural and historic environment…” It is certainly simpler – the 50-page document replaces over 1,300 pages of previous policy embedded in 44 separate documents. It will take immediate effect in those areas that do not have an existing local plan whilst there will be a transitional period in those areas that do have such a plan. Significantly, the final framework retains all the key elements of the draft framework of last year, despite Planning Minister Greg Clark’s claim in the Commons that: “I am pleased to tell colleagues that of the [Communities and Local Government Select] Committee’s 35 recommendations, I have been able to accept 30 in whole or in part.” Reaction was predictable. Chris Brown of regeneration and development management company Igloo tweeted: “For planning lawyers and consultants the recession is now officially over.” He was referring to the fact that the framework appeared to leave many loopholes open – perhaps an inevitable result of oversimplification. The biggest bone of contention was the phrase ‘presumption in favour of sustainable development’, which has always been seen by environmentalists as meaning a builder’s charter. Caroline Lucas, Green Party MP for Brighton Pavilion, said: “While it's welcome news that Ministers have grudgingly responded to public pressure and strengthened the definition of ‘sustainable development', the Government's continued obsession with growth still poses a serious

danger to our natural heritage.” It seems that the document has created as much scope as its far bulkier predecessors for expert opinion to be expressed in the fertile field of planning appeals. R

Court can set limit on expert’s assessment

erseyside law firm Goodman Legal are normally best-known as specialist solicitors to dentists, but late last year they were involved in a case regarding the seemingly arcane issue of who sets the parameters for assessing an award of damages. The case concerned the estate of an elderly woman. When she died her daughter, who was her personal representative, realised that some of her late mother’s land was occupied unlawfully by three people. She brought an action against them, seeking to recover possession of the land and claiming damages for ‘use and possession’ of it. The defendants claimed that they occupied the land under an agricultural tenancy. Initially, they rejected an offer to settle the dispute by the payment of damages to be assessed by a chartered surveyor, but then decided to accept the offer without admitting liability. They subsequently offered the woman £50 per acre as damages for occupation in order to avoid the cost of instructing a chartered surveyor. There was one further complexity. The woman claimed that a sale of adjoining land had fallen through because of the trespass and that this loss was to be assessed in the claim. The defendants claimed

that ‘damages for trespass’ only meant a fair value for the occupation of the land. The County Court ruled that damages for trespass were limited to the damages for occupying the land. The woman appealed, arguing that the judge was wrong in law and also that acceptance of the offer she had made meant that the damages payable were to be decided upon by the chartered surveyor. Even if the court had the jurisdiction to rule on the matter, she argued, it could not rule until the surveyor had reported his findings. On appeal, the Court of Appeal concluded that it would not be interfering with the surveyor’s expert opinion for the court to set the parameters of that decision. Given the large difference in likely damages payable depending on which approach was taken, it was likely that the expert’s opinion would be challenged in any event. Therefore, it was appropriate for the court to set the limits of the claim. Since there had been no intimation of damages relating to the failure to sell the adjoining land in the original claim – which was stated to be in respect of ‘use and occupation’ only – the court concluded that the alleged damages due to the abortive property sale were not part of the claim. R www.yourexpertwitness.co.uk

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New book helps address a knotty problem A

new Information Paper from the RICS Residential Professional Group deals with the issue of Japanese knotweed, which can cause tremendous damage and is an environmental hazard species. Designed for RICS members and other professionals involved with the property industry, the paper focuses primarily on the problems that Japanese knotweed has been causing in the residential property sector, particularly the effect it can have on mortgageability. It reflects the relevant legislation and regulations in Great Britain and includes treatises on Why Japanese knotweed has become a problem, How Japanese knotweed can damage a property and Effective treatment of Japanese knotweed in a residential context. Importantly, the paper sets out a framework for objectively assessing and reporting the risk posed to a property by the presence of Japanese knotweed, helping homeowners, purchasers and lenders to make balanced and informed decisions. Additionally, the glossary contains sources of further information and a unique Japanese knotweed identification chart that will help practitioners identify the plant throughout the seasons. R • Published by RICS; ISBN 9781842197677; price £30.00.

RICS experts’ conference addressed by Lord Jackson

n 8 March RICS held its annual Expert Witness Conference at London’s Grange Holborn Hotel – the first since the landmark ruling in Jones v Kaney removed expert witness immunity. The conference was billed “…an invaluable opportunity to assess how the landscape has changed for expert witnesses both from a legal and a practice perspective.” The Rt Hon Lord Justice Jackson gave the keynote address at the start of the day. The architect of the Government’s controversial civil law reforms spoke on the issue of The Role of Alternative Dispute Resolution in Furthering the Aims of The Civil Litigation Costs Review. Lord Jackson began by explaining the place alternative dispute resolution (ADR), and particularly mediation, had in the Civil Litigation Costs Review final report, whose

resultant Bill is now before Parliament. He noted that the construction industry had been at the forefront of resolving disputes by ADR and that it had had a “wide impact” upon all the professionals in the audience. He reviewed the role the courts had in promoting the use of ADR and the sanctions available to the courts where there was ‘unreasonable’ refusal to use the process, such as cost sanctions. There could be, however, occasions when a party would agree to mediate (‘to tick the Halsey box’) and then mediate unreasonably, or abandon mediation. There were many reasons why mediation or other ADR is the preferred option, but Lord Jackson came down against compulsion. “I do not agree with the proposals made for sanctions, including sanctions against all parties,” His Lordship said. Instead, he favours education, and a

campaign: “…to ensure that all litigation lawyers and judges (not just some litigation lawyers and judges) are properly informed about the benefits which ADR can bring [and] to alert the public and small businesses to the benefits of ADR.” Lord Jackson was the biggest name in a panel of authoritative speakers at the conference, which was designed to help the professionals who either act as expert witnesses or appoint experts. Other subjects addressed were how to assess what constitutes a successful professional negligence claim, understanding professional indemnity insurance for experts and how to identify the practical problems faced by experts. In particular an interactive session offered tips on how to give evidence in the ‘hot tub’, the new method of bringing experts together to give evidence. R www.yourexpertwitness.co.uk

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Dog attacks: solicitor calls for urgent Government action

he horrific incident in east London, in which five police officers were hospitalised with serious leg and hand injuries after being attacked by a dog, is just one of spate of dog attack stories in the news recently, demonstrating why government proposals on tackling dangerous dogs are desperately needed. That is the view of an expert at Irwin Mitchell, the solicitors that can claim a specialisation in the subject. News of the attack came just a week after Royal Mail announced it is to investigate such incidents, in which its staff are involved at a rate of 11 a day. Around 400 Royal Mail employees have had to take time off in the past 12 months due to such incidents, it says. In addition, the Huddersfield Examiner reported a case in which magistrates made a control order against a dog owner after his Alsatian Staffordshire cross attacked a postman in Marsden, West Yorkshire. David Urpeth, a partner and expert in dog attack cases at Irwin Mitchell’s Sheffield office, said that recent events put the issue right into the spotlight. “We are eagerly awaiting an announcement from the government regarding potential changes to the legislation regarding dangerous dogs and reports of this kind highlight why it simply can’t come soon enough,” he declared. “New measures such as microchipping and compulsory licensing could make a huge difference in relation to identification, ensuring that owners can be properly held to account for failing to control their pets. “We also believe that compulsory insurance should be in place to ensure that those hurt in such incidents are able to gain justice for the terrible injuries and trauma caused. “Dog attacks can have a significant impact on victims and this issue

continues to rumble on. Clearly action is needed before anyone else is seriously hurt.” The incidents come less than two weeks after a report in the Burnley Express revealed there has been a 13% increase in the number of dog bite cases in hospitals operated by the East Lancashire Hospitals NHS Trust since 2007. According to the response to a request under the Freedom of Information Act, a total of 793 cases were recorded in 2011, with around a quarter of those incidents involving children under 16. Louise Scott, another of Irwin Mitchell’s specialist dog attack solicitors, said at the time: “This research raises significant concerns, with the 13% rise demonstrating that the problem of dog attacks in some communities is simply not going away”. q

Horse’s death halts TV series

n 25 March TV viewers in the US tuned in to the first – and last – season finale of a ‘lavish’ horseracing drama series starring Dustin Hoffman and Nick Nolte. The series, called Luck, dealt with the seedier side of racing and cast Hoffman as a criminal seeking to gain control of a racecourse. It has been cancelled, not because of failing viewing figures or questions of programme quality, but because of the death of one of the horses, the third such incident to happen during filming of the programme. Programme maker HBO issued a

statement on 14 March, which said: "It is with heartbreak that executive producers David Milch and Michael Mann, together with HBO, have decided to cease all future production on the series Luck. “Safety is always of paramount concern. We maintained the highest safety standards throughout production, higher in fact than any protocols existing in horseracing anywhere, with many fewer incidents than occur in racing or befall horses normally in barns at night or in pastures. While we maintain the highest safety standards possible, accidents unfortunately happen and it is impossible

to guarantee they won't in the future. Accordingly, we have reached this difficult decision. “We are immensely proud of this series, the writing, the acting, the filmmaking, the celebration of the culture of horses, and everyone involved in its creation." The ultimate irony of the third incident was that the horse had just been examined as part of routine health and safety practice. According to California Horse Racing Board vet Dr Gary Beck, who had carried out the examination: "The horse was on her way back to the stall when she reared, flipped over backwards, and struck her head on the ground." Previously, during filming of the first series, two horses had been hurt and had to be put down. Following a halt in production at the Santa Anita Racetrack location, racing resumed in February with new protocols in place, the BBC reported. The American Humane Association, which oversees filming involving animals in Hollywood, is carrying out an investigation and is working with HBO to ensure the other horses in the series are ‘retired properly’. q www.yourexpertwitness.co.uk

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Lord Justice Jackson’s Review the Scottish perspective by KIM LESLIE, Convener of the Civil Justice Committee of the Law Society of Scotland

ot to be outdone by Lord Justice Jackson’s Review, the Scottish Government announced a review of the cost and funding of litigation in Scotland would take place. This review is to be undertaken by Sheriff Principal James Taylor and the consultation document has now been published. Prior to publication Sheriff Principal Taylor carried out informal hustings with various stakeholders about the content of the consultation document. At these hustings, of which I have attended two, Lord Justice Jackson’s Review has been discussed in some considerable detail. Naturally. It is a comprehensive review looking at all aspects of funding and expenses. However, the recommendations contained within are undoubtedly to ‘cure’ deficiencies in a costs system which operate in a very different way to our system in Scotland. I am assured that the Scottish Review will consider the Scottish landscape and make recommendations to Government to ameliorate the vagaries of our distinct system. It would however be naïve to imagine that the recommendations by Jackson, if implemented, would not impact on our Scottish system. For example, where you have a choice of forum, how a case is funded and expenses met is a major consideration. It would certainly fall within our professional obligations to consider before recommending to our clients where to sue. One major difference between our jurisdictions is that in Scotland it has never been the case that you could recover the success fee or ATE (after the event) premium from the defender. This is an alien concept to us. Therefore, Lord Justice Jackson’s recommendation that the recoverability of success fees from the defender be abolished has met with a relatively sanguine acceptance. So far, so, if not good, at least familiar. It is not a perfect system that requires the success fee element of a claim to be deducted from the pursuer, but it is one that at least spreads the burden of the cost. It may not adhere to the principle of 100% restitution but that sacrifice means that litigants can access the courts risk free. There is inevitably a cost implication to that and someone has to bear the brunt. It is just a question of deciding who, and in what proportion is the fairest. A recommendation that may significantly impact on Scotland is the introduction of qualified one-way cost shifting. We have that here already, to a certain extent, in that it is open for a legally assisted person (ie someone on a legal aid certificate), even if they lose, to ask the court to modify the award of expenses against them, usually to nil. I am convinced that this recommendation will have unintended consequences. I accept that the system in England and Wales, where recoverability of success re an ATE existed, was overly burdensome to the defenders. I accept that this recommendation, in one fell swoop, does away for the need for after the event insurance. My reservation comes from a fear that worthy litigants would be put off from pursuing their claims by any doubt as to their protection from expenses. The one way cost shifting is qualified. Now even with reassurance that a litigant will not be penalised in expenses if his conduct has been reasonable. It will be the case that the ‘reasonableness’ or not of the claimant or pursuer will be determined by another. The control is removed from the pursuer and his agent. This removal of control is of major concern. This may seem overly cautious, however, worthy but cautious litigants may well be sufficiently anxious to avoid pursuing claims. Another concern is that by removing the financial risk, overly confident litigants and their bullish agents will have no real incentive to settle. More cases are likely to run, taking up judicial time, which is, as we know, the most costly aspect of litigation. In addition, as with the ‘cost wars’ in England

and Wales, there is a fear that satellite litigation or an increase in appeals will be spawned from the reasonableness qualification of one-way cost shifting. It is the very nature of lawyers to find something to argue about. I am by no means persuaded that by removing the financial stake in proceedings this will produce an improvement in our justice system. Considering matters from the insurer’s position, they may resignedly settle unmeritorious claims, as without any sanction there will not be the responsible sifting by agents of cases that are not stateable. Would you risk running a case that, even if you won, there was no expenses sanction? In conclusion, it is a very positive thing that cost and funding of litigation is being reviewed in both jurisdictions. The ability to access the courts should not be the luxury of the rich. The difficulty facing those compiling our review is that if Jackson’s recommendations are implemented then we will, for the sake of keeping a level playing field, have to follow suit. This may happen, despite the very different costs and funding landscapes. We did not follow suit and introduce recoverability of success fee and ATE premiums from the defender. Our Scottish system is therefore cheaper to the insurers. Arguably, it is more sustainable this way. I, however, do accept that it is not without its flaws. Ultimately, it remains to be seen how far Jackson influences our review, which is in the early stages of its gestation. It would be wrong and unwise to ignore Jackson’s review. Likewise, it would be wrong and unwise to adopt its recommendations wholesale. We may have problems with costs and funding but they are different problems. q

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Scotland v England The expert’s view

by JOHN McCULLOUGH, PhD, CEng, CSci

What is an expert?

The description I feel most at home with is a person who, by reason of qualifications, knowledge and experience can explain complex issues to a judge or tribunal, both of whom are usually non-technical persons. The expert witness, unlike a witness to fact, is allowed to give opinion evidence. So, the expert has to be more knowledgeable in his or her technical subject than the legal people involved in the process. He must know enough to be sure of his opinion on the particular matter, which may not be particularly novel or difficult. So the term expert can be misleadingly immodest.

Where does an expert perform? An expert may operate in a variety of spheres, for example: • Civil litigation in England & Wales, Scotland and abroad • Arbitration in the UK and abroad • Public inquiries, fatal accident inquiries and coroner’s inquests in the UK • Adjudication in the UK • Mediation in the UK and abroad • Expert determination in the UK and abroad • Tribunal appointed expert, e.g. in arbitration by the International • Chamber of Commerce (ICC) to help the tribunal assess the evidence of • the parties • Dispute resolution panels in the UK and abroad • Criminal proceedings in England & Wales and Scotland

Being an expert in England and Scotland For some of these, such as mediation or adjudication, the rules will be the same in Scotland and England. However, in some cases there are significant differences that affect the activities of the expert. In the case of arbitration, there are different Acts and rules in Scotland and England as well as in other parts of the world. If we consider the difference between civil litigation in England & Wales and Scotland, one significant issue is CPR (Civil Procedure Rules) which apply in the former but not in the latter, yet.

Evidence allowed in court In Scotland expert reports do not have to be exchanged (but sometimes are) and there can be trial by ambush. In one case I was involved in there were four defending parties. The pursuing party and three of the defending parties had appointed experts and exchanged reports whereas the fourth defending party prima facie had not. During the hearing a Dr X from a local university entered the witness box and gave oral evidence only on behalf of the fourth defending party. That was the first the rest of us knew about it. A colleague of mine was also presented with evidence in the witness box which contradicted what she had been told by her instructing solicitor and which completely undermined her evidence.

This would be unlikely to happen in England where material to be used in court must be disclosed in advance.

Use of reports in court The use of the report in the court is also different in the two jurisdictions. In England the judge will generally have read the report and in many cases the examination of the expert assumes that the parties are familiar with it. In Scotland the expert may be asked to read parts of the report before being examined on them.

Meetings of experts In England and Wales, under CPR, experts are generally required to meet in good faith to discuss their evidence and, if possible, narrow the issues in dispute. In Scotland, meetings of experts are less common.

Criminal cases In criminal proceedings within the two jurisdictions there are also differences, for example the jury sizes are different. A more important point is the Scottish ‘not proven’ verdict in addition to ‘guilty’ and ‘not guilty’. I was involved in a health and safety prosecution where a worker was injured in a pipe-making machine. The verdict was ‘not proven’, which could not have happened in England.

Preliminary advice An expert may be asked for advice on a matter before formal proceedings commence. In both jurisdictions such advice, if prepared in contemplation of litigation, is confidential and does not need to be disclosed. The advisory report, in England, should be titled such and marked ‘confidential, privileged and for the purpose of litigation only’.

Qualities of an expert Regardless of where practising, expertise (but see opening paragraphs), integrity and independence are essential requirements. The expert’s duty will always be to the court. It is essential at all stages, even at the start, that an expert gives impartial advice to his clients. There is no point in misleading them about the strength of their case and it may be helpful to point out where there are gaps in the evidence that need to be addressed. R • Dr John McCullough is a Consultant with Cadogans. Cadogans accepts instructions relating to engineering and health and safety matters, large and small, from within the United Kingdom and abroad. For details of Cadogans’ full range of services and specialist expertise please contact them by telephone, email or fax, or visit their website www.cadogans.com. www.yourexpertwitness.co.uk

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Cross-border expertise

xperts practising across national borders have an added responsibility – to ensure their work is presented according to the codes required in the country of delivery. Professionals working in the USA, where legislation differs from state to state, or in parts of mainland Europe, will be more familiar with this extra challenge than we are… but devolution cometh! The offices of property specialists Smith & Garratt Rural Asset Management overlook the River Tweed from the ancient hamlet of Ladykirk – about 300 yards north of the Scottish border. Principal surveyor Hugh Garratt acknowledges that professionals along the border have to be mindful of the increasing differences in law and procedure between England and Scotland: “Scotland has preserved its own legal system since the inception of the Union and devolution is bound to widen the difference with every piece of legislation produced by the Scottish Government,

and with every piece of UK legislation that is implemented differently across the border. Even European legislation, which you would think applies consistently across the UK, is treated differently – either because court procedures differ, or because legislation is enacted with slight but significant differences”. Mr Garratt, who is double-qualified as a surveyor and in law, appreciates the assistance provided by instructing solicitors: “Whichever side of the border you are, going to law is expensive. Everyone understands that the expert is there to help the process reach the right conclusion and a bit of teamwork goes a long way towards avoiding confusion, mistakes – and costs.” Smith & Garratt’s caseload arises on both sides of the border, from its three areas of expertise – planning and development, heritage property and private client work – which Mr Garratt describes as, “anything other surveyors and solicitors don’t feel comfortable doing

– usually niche valuations, tax work, compulsory purchase, specialised surveys and dispute resolution.” The firm is regularly in demand for planning appeals and Public Inquiries and for resolving disputes – typically regarding boundaries or compensation for interests in land. Mr Garratt sits on the Forestry Commission Review Panel, which addresses disputes concerning woodland, as well as the RICS Dispute Resolution Panel for boundaries and he has RICS Accreditation in Building Conservation. He believes that working on both sides of the Border broadens his experience, gives him the opportunity to compare different approaches and helps him apply the best solution to each case. A recently resolved English case concerned a boundary of a different kind. Following a trip and fall that occurred on land of unknown ownership, a personal injury claim was settled. Neighbouring landowners and joint defendants – a highways authority and a harbour board – were left to decide which of them was to pick up the bill. Solicitors agreed to bring in Smith & Garratt. Having seen that neither defendant held Registered Title to the site of the accident, the expert researched other materials relating to Title. Finding nothing conclusive, he looked for historic and current evidence relating to user and to responsibility for maintenance. Again nothing conclusive was found, and Mr Garratt fell back on the general rules for highway dedication, refined by case law, to reach his conclusion. Did the case highlight cross-border differences? “Not hugely”, Hugh replies, “had similar circumstances arisen north of the border the Titles would be Scottish, and the research would have involved cross-checking Scottish statutes and cases. As the underlying principles are similar, our conclusion would probably be similar, but the procedures are different in Scotland – and we would have ‘kilted’ our report.” What, we wondered, is the term used by crossborder professionals to describe a document with language adjusted for use in England? “I’m afraid it is ‘shell-suited’,” smiles Mr Garratt. R www.yourexpertwitness.co.uk

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Changing minds: making sense of conflicting expert psychiatric opinion by DR ROBERT M WRATE MBBS DPM FRCPsych Consultant in Child and Adolescent Psychiatry

reater effectiveness is required if the quality of expert medical opinion is not to be adversely affected by the ceilings now being placed upon legal aid and expert witness fees. Greater clarity will be required about when it is vital to seek a medical expert opinion, not just desirable, and also sufficient opportunity created to resolve any important differences of opinion that arise without taking up costly court time. The focus of this article will be on cases where the issue concerns possible negligence, and the individual involved is unavailable for examination i.e. where the opinion must be primarily derived from health records and other relevant documentation.

Making sense of conflicting psychiatric opinion A great deal may hang on the outcome of the opinions provided, whether for example there were blunders by individuals – causing significant delays in diagnosis or treatment that led to otherwise avoidable adverse consequences – or whether some systemic organisational issue had been present that led to a catastrophic failure in care. It is particularly likely that differing expert opinion might be present on complex cases involving disorders of moderately poor prognosis. Pre-court conferencing between all experts involved in an Fatal Accident Inquiry (FAI) for example, encouraged in England, has not been considered appropriate in Scottish courts where an expert’s oral evidence is all-important. That may change following Lord Cullen’s recent review of FAI’s in Scotland (November 2009). Writing of his concern about “the delay that can be caused by the FAI being repeatedly adjourned for periods of months at a time” that arise from “a failure to make a realistic assessment of the time required” (para 6.23), Cullen recommended that : “It should be normal practice for such witnesses to meet (beforehand) and identify what is common ground and on what points there is a lack of agreement (and) the FAI be provided with a statement of the former, preferably in writing”. For the last forty years in Scotland juvenile crime has been decriminalised, with the use of Children’s Hearings. Likewise, in Cullen’s opinion FAI’s should be “fact-finding, as opposed to faultfinding” (3.10), where “sheriffs discourage the hostile questioning of witnesses” (3.13). However, that has perhaps been difficult to avoid when a court finds itself in the presence of strongly contested evidence some of which, in other circumstances, is best explored (and challenged as necessary) between professionals meeting together using their usual methods. In short, meeting together beforehand to contest their observations, rather than those offered sequentially by oral evidence in court under legal rules of evidence. The low ceilings now being imposed will time-limit the opportunity experts may now be provided to discuss between them any conflicting medical opinion, and the sources of such differences. This will especially apply to psychiatry, where a single meeting between dissenting experts – or even two - may be insufficient, not because of the personalities involved (!) but because of the nature of the subject, setting it aside from most of medicine.

The important border for expert psychiatric opinion is a professional one – not a geographical one The border lies within the field of medicine, which has a strong empirical tradition. Diagnosis is based on observable phenomena, either of symptoms reported by the patient or independently observed by the doctor, but each capable of being examined by scientific method

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and findings documented. Decision-making about diagnosis is also informed by a vast hinterland of accumulated professional knowledge about illness as a process, so the presence or absence of a single ‘aberrant’ sign or symptom can turn medical opinion in an unexpected direction (caseprecedent thus less unimportant than in law). Across a border that separates it from most of medicine, psychiatry lacks the wealth of objectively measurable phenomena usually available. This prevents numerical description and thus an agreed understanding of the natural variance of each phenomena, such as the boundary between normal variation and a pathological finding. Confidence instead depends upon sustained observation and careful recording by text, the level of expertise of those involved, how completely their history-taking from the patient had been and, for later case-record review, how completely (and legibly) their findings were documented. Where professional rigour in past history-taking and case-description is uncertain and has not brought precision to the records under review, reaching an opinion may be difficult and thus differences between experts more likely.

Difficulties arising where documentation of care is inexact and the expert review of it accordingly uncertain Without laboratory printouts and numerical descriptors of psychiatric pathology and its treatment, opinion largely rests upon the review of text, which is particularly challenging when case-records are voluminous. There may be justifiable uncertainty about whether all the involved experts have reviewed them similarly, overlooking no recorded symptoms and observing all significant omissions of customary psychiatric practice. “I observed nothing untoward” might simply represent an expert’s time-limited incomplete review, or – perhaps just as controversially – their acceptance that the absence of any written documentation of an expected important health-procedure did not constitute evidence that it had not occurred Resolving this is vital when the complaint, or FAI investigation, involves a possible missed diagnosis. In my experience of when extensive records were present, dissenting expert opinion often seemed to derive from differences in the evidence reviewed rather than their interpretation, some bundles of documents preferred to others etc. An important step would be to require each expert to declare exactly what documents were not reviewed, or not as carefully reviewed as others. However, it is also the case in psychiatry that a missed diagnosis does not necessarily reflect a mistake or represent a blunder about which a claim about negligence can be justified, since the gradual onset of some conditions before formal medical recognition takes place can often lead to lengthy delays in diagnosis. For example, at present the average age of onset of bipolar disorder (17years) occurs up to a decade or more before clinical diagnosis. Before then their behaviour might be attributed to a personality problems (Tijssen et al, 2010). So variation in expert opinion about the age at which this diagnosis can or should have been made must be expected. However this is

less justifiable when caused by some of the factors described above, especially when these influences have also not been made explicit.

Diagnosis v case-formulation: greater precision v greater clinical value In some areas of psychiatric practice, including my own, an imprecise case-formulation may be far more useful to guide clinical decisions than a specific diagnosis. Because of the multi-factorial nature of mental ill-health (i.e. social and interpersonal factors as well as physical), any specific diagnosis should be embedded within a carefully observed social context, which may profoundly affect the level of severity of the problem and its outcome. That effect can range from large (e.g. when ‘stress’, ‘anxiety’ or an ‘eating disorder’ is the presenting problem) to comparatively little (as in the onset and course of more uncommon problems such as schizophrenia). However, a detailed case-formulation is by its nature speculative, and therefore can become another important source of variation in expert witness opinion. With far fewer objectively measurable phenomena, the clinical practice of psychiatry is more subject to bias than the rest of medicine. Observations and clinical practice may reflect particular bias – how else can the enormous variation in psychiatric practice sometimes observed between one clinician and another, or between departments, be explained? In the treatment of anorexia nervosa for example, the necessity for detention under mental health legislation, and the duration of admission, should only be based upon the merits of each individual case. However it is inconceivable that patient-factors alone account for observed differences in rates of detention, and duration of admission, between inpatient units where a three-fold variation in rates can be observed.

My own experience of an FAI also highlighted the major differences between legal and medical approaches to what constitutes admissable evidence, and how evidence is contested. An expert providing oral evidence under cross-examination in court is undergoing a very different process to that doctors employ in clinical practice to think through the clinical evidence and arrive at a medical opinion. A specialist’s clinical opinion often remains provisional (Mason 1993) and only legal proceedings would transform it to become evidence in a legal sense. From a clinical perspective, “deliberately shifting ground (under) the force of cross-examination...” as the presence or absence of a newly observed sign or symptom is presented, would not be viewed to “reduce the objective quality of...(his) evidence, and render it of little assistance to the court” because there is no equivalence in medicine to inadmissible evidence in law. From the clinical position of ‘safe uncertainty’ (Mason 1993), a belatedly observed phenomena can never be ‘too late’ to consider, as once observed what is at stake is only its salience, but in court cross-examination of the medical evidence as doctors define that process cannot occur. In short, the most practical step to resolve conflicting expert psychiatric evidence probably lies outwith court, but directly accountable to court (including experts’ mandatory participation) i.e. guided by requirements set out by the legal procession. The costs of the alternative – i.e. resolving conflicting expert opinion in court – will usually far outweigh the costs involved. q • Cullen (2009). Report of findings of Review of Fatal Accident Inquiry Legislation, an independent review (ISBN 9780755981717), uploaded 14thMarch2012 HYPERLINK "http://www.scotland.gov.uk/publications/2009/11/02113726/0" www. scotland.gov.uk/publications/2009/11/02113726/0

Exploring rather than resolving confirmatory bias Whenever conflicting expert medical opinion arises on psychiatric matters, exploring the sources of confirmatory bias is important. For an FAI in Scotland, Lord Cullen clearly believes the courtroom is not the first place this should be undertaken.

Tijssen MJA, van Os J, Wittchen H-U et al (2010). Prediction of transition from common adolescent bipolar experiences to bipolar disorder . British Journal of Psychiatry, vol 196, p102-108. Mason B (1993). Towards positions of safe uncertainty. Human Systems : the Journal of Systemic Consultation and Management, vol 4, 198-200.

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When should children be adopted and when should they remain with their current parent? by DR L. F. LOWENSTEIN, MA, DIP PSYCH, PhD

he question of removing children from a parent, usually a mother, is a fairly serious event, most especially for the child as well as for the parent, depending on the child’s age. There has currently been a considerable degree of pressure put upon both Social Services, involved with adoption procedures, and parents having their children removed for various aspects of what is considered to be poor parenting, or lack of ability to parent adequately for the child’s needs. I will consider the matter from two main aspects: 1. When should a child be removed from the care of the family i.e. 1. the mother and the father or the extended family. 2. When should a child not be removed from the care of the family?

When should a child be removed from the care of the family? A child should be removed from a parent who is incapable of dealing effectively with the rearing of a child emotionally and in every other way. Parents likely to fall in this category may well suffer from serious mental illnesses or psychosis, including schizophrenia, and severe depression as well as those who carry out abuse. Any kind of proven abuse, or allegations of abuse should be investigated thoroughly. This includes emotional, physical and sexual abuse. Such children need to be removed from the lack of care that they are receiving and placed in an environment where they can mature and develop positively. If the parental illness is so severe as to necessitate permanent removal of the child from that parent, and this must be assessed most carefully by a mental health worker such as a psychologist or psychiatrist, then the child will have to be permanently placed for adoption. If, however, the mental condition of the mother or father or both can be dealt with effectively through medication and other treatment, then the child may well be returned to the parent(s) after a period of time (maximum of 6 months) when a period of stability has been reached, and the family monitored on a regular basis. In the case of emotional or physical abuse, the level and nature of the abuse should be considered carefully and weighed against the opinions and wishes of the child to remain or not remain with the family. The circumstances surrounding the abuse should be looked at very carefully and family or individual counselling considered rather than the permanent removal of the child from the family. Sexual abuse should be dealt with by removal of the perpetrator and treatment of the child/children involved. It is important to maintain a family bond for the victim(s).

the ultimate decision, hopefully based on the findings of the expert assessing the matter. It must be remembered that it is vital to act in ways which are in the best interest of children and to make certain the parents are competent enough, although by no means perfect, to allow them to retain their children, or eventually to retain their children. Some may need time to achieve this once certain problems have been dealt with and parental skills have been inculcated into parents who may have lacked them. Hope for the future is important to maintain in such cases. Society is as ever in a difficult position. If social workers do not act to remove children who are at risk, the danger to these children could lead to criticism being made of social workers and the work they do. If, on the other hand, children are removed when it is not necessary, or when it does not need to be on a permanent basis, then that is equally wrong and damaging to the child as well as to the natural parents. In order to overcome such a dilemma it is vital to involve experts in the field of paediatrics, psychology, psychiatry and social work as well as the police working together. This approach is likely to provide the most effective decision-making process both to prevent children being removed unnecessarily and adopted, or left with parents who are likely always to be unable to function effectively as parenting figures. One should always approach matters with an open mind. q • Dr L. F. Lowenstein has a number of websites which contain articles of a research nature and based on experience, which could be consulted. These are www.drludwigfredlowenstein.com and www.parental-alienation.info.

When should a child not be removed from the care of the parent? It is important not to remove children from the care of their natural parent(s) unless it is absolutely necessary. In some cases mothers and/or fathers err due to lack of parenting skills to deal effectively with the child/ children. Such children should be removed temporarily or remain with the parents providing a considerable degree of monitoring is possible of the parent’s relationship with the child. In the meantime, the parents can be trained to develop parental skills that will help them to deal more effectively, emotionally and physically, with the care of the child. In order to determine a child’s removal, permanent or temporary, from the care of the parents there needs to be a in-depth psychological assessment of the child and the parents. As one is frequently involved with court decisions, or risk assessment of parents, and with families in turmoil due to parental conflicts it is vital to carry out full assessments of all parties concerned and a written report should be provided for the court to make www.yourexpertwitness.co.uk

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TRANSCULTURAL LITIGATION

Cutting fish with a machete it’s a conflict of cultures

by DR BASHIR QURESHI FRCGP, Hon RSPH, expert witness in cultural, religious & ethnic issues in litigation.

ne midnight a British Bangladeshi man was driving alone, in a zigzag line, in London. The police stopped him and found his breath was negative for alcohol, but there was a smell which could be that of a ‘drug’. A car search revealed a machete under a back seat. He was prosecuted for carrying a lethal weapon in a public place. His defence was that he had borrowed the machete from a relative, who lived some distance away, and he was taking it to her mother, who needed it to cut fish for a family lunch the next day, as part of a religious festival. He had eaten a curry meal. I explained the issues impartially, in my capacity as an expert witness in cultural, religious and ethnic issues in litigation, as follows:

Cultural issues • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

In Britain, Indian Hindu Bengalis (only non-vegetarians) and Muslim Bangladeshis, who share a common culture and language, eat fish and rice as their staple diet. Some may eat lamb, but only Muslims would eat beef. Fish is easily available from the Bay of Bengal, in the Indian Ocean, which forms the coasts of the Indian province of Bengal and Bangladesh. Fish is also available from rivers or ponds. Fish is cheaper than lamb or beef and poor people may only afford fish. Whereas the English would eat fish and chips, British Indian Bengalis and British Bangladeshis would eat fish and rice. They cook it as a curry. The English would eat fish without bones, removing the bones before eating. They never need to use a machete to cut meat or fish. A machete is more likely to be carried by them as a weapon. British Indian Bengali and Bangladeshi women would cook fish with bones, cut in small pieces. To cut the fish meat and bones into small pieces they may use a machete rather than a kitchen knife, because it acts like a heavy axe and cuts quicker than a knife. They believe the bones contain calcium and vitamin D. They find it economical to feed more people in their extended families daily and in weddings or religious festivities with fish. They would hide a machete and a kitchen knife from boys and may share a machete between relatives to save money and to avoid accidental use by male adolescents. When the English cook fish with bones, they remove them while eating. A large piece of bone can get stuck in the throat. I remember the news of our late Queen Mother having a bone removed from her throat, however such accidents are rare among British Indian Bengalis or British Bangladeshis. The smell of a curry dish may be mistaken for a drug by the English police.

• Beef is taboo to Hindus and Sikhs. • Meat is taboo to vegetarians, however some vegetarians don’t • regard fish as meat. • Fish is acceptable to all non-vegetarians of every religion. • It is, therefore, often on menus in multi-religious banquets or • marriage ceremonies. • Alcohol is taboo in Islam, as it influences one’s behaviour. • Large families are the norm, as contraception is forbidden in • many religions.

Age, gender and social class issues • • • • • • • • •

Older women, often mothers with large families, in the British Bengali-speaking population cut fish with a machete. Women are more likely to use a machete to cut fish than men. Men are more likely to be butchers and they may use a machete. Poor people in coastal areas find fish cheaper than other meats. Parents with large families can afford only cheaper foods. Fish is a nutritious food. It is low in cholesterol and contains omega 3 fatty acids, which is good for the heart. Fish with bones fits the bill.

Technical issues • A machete can cut fish meat as well as a kitchen knife and also • acts as an axe, being heavy, to cut fish bones. • Butchers worldwide often use a machete to cut bones in the • meat of a lamb, cow or pig. It can be used as a lethal weapon by • some individuals and was frequently used in wars in ancient • times. • It has been observed that, if someone drinks only water for two • hours after an alcohol drinking session, the breath test for • alcohol may become negative. After eating a curry meal, one has • to drink a lot of water. q

Religious issues • Pork is taboo to Muslims and Jews. www.yourexpertwitness.co.uk

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Forensic Science Service ends its days in Wetherby A

t the end of March the celebrated Wetherby laboratory of the Forensic Science Service closed, marking the final nail in the coffin of the service, whose other centres throughout the country had already closed. Despite a national furore – including being denounced by MP’s and the world-renowned scientist who pioneered DNA profiling – the service was wound down from September last year and closed as a national entity at the beginning of March. Only Wetherby remained to sound a last hurrah in the successful conviction of David Bryant for the kidnap and sexual assault of four girls in the 1980’s and 90’s. Last year the Commons Science and Technology Committee condemned the closure plan. In its report the committee said: “In making its decision to close the FSS, the government failed to give enough consideration to the impact on forensic science research and development, the capacity of private providers to absorb the FSS’s 60% market share and the wider implications for the criminal justice system. These considerations appear to have been hastily overlooked in favour of the financial bottom line.” The Government’s response was that the service had incurred “huge losses” and could not be sustained. Another commentator who was critical of the closure was DNA pioneer Professor Sir Alec Jeffreys, whose forensic science techniques are used all over the world to catch criminals. “The death of what was once the flagship of UK forensic science is very sad,” he told the Royal Society of Chemistry, “and the future of UK forensic research is parlous in the extreme, though in fairness some of the commercial providers do conduct research though largely at the translational end of the spectrum. “The sad fact remains that any future transformative development in forensics is most unlikely to emerge from the UK unless the science base is rescued.” Notable cases the Wetherby laboratory has been involved with over the years include the assassination of Swedish Prime Minister Olaf Palme in 1986, the Yorkshire Ripper murders and the trial of Ronald Castree for the murder of Lesley Molseed following the quashing of Stefan Kiszko’s conviction. The negotiator for the trade union Prospect, Steve Thomas, said questions remained over the logistics of how the area covered by several police forces across the north east of England would be served, according to a report by the BBC. He said: “Our members are to be commended for the passionate support they have provided to the police forces of the north east during the last year when a question mark hung over their own future.” Some of the staff will be following the laboratory’s workload to the LGC facility in Wakefield. Ironically, LGC is the company set up in 1996 following the privatisation of the Laboratory of the Government Chemist by the previous Conservative government. It is housed in the Sir Alec Jeffreys Building in Wakefield’s Calder Park. R

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Neck and shoulder pain and computers by MR JON LEIGH ND, DO, Registered Osteopath

ne of the more common conditions experienced by office workers is neck and shoulder pain. People are spending increasing amounts of time in front of computers and unlike the pre-computer work environment, when it was mainly women who used typewriters, today all members of staff are expected to input data, write reports and use both keyboards and mice. Companies that spend increasing amounts of money on hardware and software are sometimes reluctant to give some thought to the environment that their staff have to work in. Desks are too small, the work surface is too crowded and, for many workers, the screen is too high. When the physiology of reading is examined, it will be noted that when we read, the eyes drop and focus on a region approximately twelve inches in from of the eyes. It is not normal to read in the straightahead position and in spite of screen being in front of the operator, the preferred position to read is with the head tilted back and the eyes dropping downwards and inwards. This position leads to the computer user sitting with the head and neck in a position of backward bending, which if held for extended periods of time will cause fatigue of the muscles at the back of the skull and neck. If this continues, it may cause spasm of the neck muscles with a resultant irritation of the nerves which pass through the neck to

supply the shoulder, arms, wrists and hands. In the extreme case, this may result in tingling in the hands and fingers, restricted movement at the wrist, stiffness in the shoulders and neck and headaches. Osteopathic treatment will help reduce the symptoms but it is more important to conduct an ergonomic survey of the workplace and ensure that workstation is physiologically efficient, the chair/keyboard/screen relationship is correct and that the cause of the problem is eliminated, rather than merely treating the symptoms. R

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Complex Regional Pain Syndrome by DR ANTHONY CLARKE, FRCP Consultant in Rheumatology & Rehabilitation, Bath

s a physician who sees a wide range of painful conditions, I am used to having to rely on the patient’s history and a not very helpful examination to make a diagnosis. This is particularly so in claimants presenting with chronic pain after road traffic or industrial accidents. There is one condition, however, that sticks out like a sore thumb – sometimes literally! Complex Regional Pain Syndrome (CRPS) can present with quite startling physical signs, including fixed deformities of the hand or foot, gross skin changes and total loss of function in the affected limb. The course is often prolonged and the outcome far from satisfactory. CRPS is a condition with a number of alternate names. Originally the condition was called Sudek’s atrophy after the German surgeon who first described it. Because it was suspected that the condition was due to a disorder of the autonomic nervous system (that part of the nervous system not under voluntary control, responsible for maintaining blood pressure, breathing rate etc) it became known as sympathetic reflex dystrophy, as well as algodystrophy. CRPS is divided into two groups – type I, without obvious nerve damage, and type II, with nerve damage. Type I is more common, both in clinical and medico-legal practice. It is characterised by an initial significant, but not necessarily serious, soft tissue, ligamentous or bony injury, followed by a constellation of signs and symptoms which develop over the weeks and months following the injury. These can include severe pain, swelling, colour and temperature change, allodynia (which is pain on light brushing of the effected body part) and loss of function. In longstanding cases, skin atrophy and reduced skin and nail growth may be seen. To make a diagnosis it is not necessary to see the full range of signs and symptoms, but it is not tenable to make a diagnosis on the basis of chronic pain alone. Signs do change with the passage of time and if the condition does not resolve, then significant atrophic changes are likely. Investigations may support the diagnosis, but none can prove the condition. Plain radiographs may show spotty osteoporosis in the first two or three months of the onset of the condition, but the majority of claimants will not have these changes visible by the time they enter the litigation process. Radionucleotide bone scanning can be very helpful if positive, as this will support the diagnosis. Typically the uptake of nucleotide is increased in the late phase of the examination, as opposed to scans taken in the first few minutes after the injection of the material. This is due to increased bone turnover in the early stages of the condition. Similarly MRI can demonstrate oedema

(retained water) in the soft tissues. However, there is no gold standard investigation and CRPS cannot be excluded just because the imaging is normal. Needless to say there is no diagnostic blood test. In the end the best diagnostic tool is an experienced physician who regularly sees and treats people with CRPS. There is no doubt that CRPS is a difficult condition to treat. Type II may respond to surgical treatment, but otherwise is treated as Type I. There is no doubt that the earlier the condition is recognised and treatment commenced, the more likely it is that there will be resolution. Adequate pain relief, including the use of analgesics which are effective in neuropathic pain, such as pregabalin, should be given. Physiotherapy and encouragement to use the body part (usually a limb) are almost mandatory. Immobilisation of the limb is to be avoided. If improvement is not seen, then the claimant should be referred to a pain clinic with special expertise in CRPS. Such a clinic should offer a multidisciplinary approach, which may include intensive physiotherapy, sympathetic nerve block injections, drug therapy and cognitive behavioural therapy. Mirror therapy, which allows the subject to replace sight of the diseased limb by the good limb, can relieve symptoms in some patients and is now frequently used in these specialist clinics. Table 1 lists some of these units in England. If inadequately treated not only will the first limb become increasingly useless but, in some cases, there will be a spread to involve wider areas of the body and may appear to involve new limbs. The cause of this phenomenon is ill-understood. However, sometimes individuals use ligatures to induce the signs and symptoms of CRPS. Outside the litigation process this is recognised as a psychological disorder. Frequently the sufferer will produce such profound tissue damage that amputation is thought to be necessary. This will not relieve the pain and then the patient will use a ligature on another limb. It is difficult to get a ligature on the fourth limb! However, I have seen two claimants who appear to have used ligatures to deceive. In both of these cases it would appear that the ligature was only applied just prior to interviews with experts. Both were exposed by the surveillance data. I suspect that the internet is implicated in this behaviour and the success of some claimants in deceiving the experts and the courts. However, the overwhelming majority of claimants with established CRPS are genuine and have significant loss of amenity which, if not treated early and robustly, will lead to long-term disability. q

TABLE 1 – SPECIALIST CRPS SERVICES • Dr Nicholas Shenker, Addenbrookes Hospital, Cambridge • Dr Rachael Gorodkin, Manchester Royal Infirmary • Dr Richard Haigh, Royal Devon & Exeter Hospital • Prof. Candy McCabe, Royal National Hospital for Rheumatic • Diseases, Bath • Dr Helen Cohen, Royal National Orthopaedic Hospital, London • Dr Andreas Goebel, The Walton Centre, Liverpool www.yourexpertwitness.co.uk

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Fractures: pitfalls and quandaries by MR IAN FORSTER MBBS FRCS FRCS(Ed), Consultant Orthopaedic Surgeon

ractures are a common cause of litigation whether missed, misdiagnosed or maltreated. The normal history of injury, swelling pain and loss of function usually makes it easy to decide to perform an X-ray. There are a few injuries where there is little discomfort allowing normal function but with increased pain (e.g. fractured metatarsals) when diagnosis is made sometime later when the fracture is healing. Clearly soft tissue injuries can give rise to exactly the same symptoms and same loss of function as a fracture, particularly with ankle injuries, and it can be difficult to know whether to X-ray them or not. For ankle injuries there is an algorithm called the Ottowa Rules which are used to decide whether an X-ray needs to be taken. However, it is true that such injuries are treated on the basis of the soft tissue as much as on the fracture and whether such fractures are plastered or not probably does not matter. The soft tissue injury overrules it. It would be acceptable under the Ottowa Rules if an X-ray was not carried out and a fracture was found. If a clear single fracture is otherwise missed this would be negligent. However secondary minor fractures which happen at the same time as a more major fracture can be missed initially because of the need to treat that major injury. Most units deliberately carry out a secondary examination the day after the injury and X-ray any other parts that appear to be injured at that stage. Again this would be within the normal treatment plan. After diagnosis fractures are treated conservatively by plaster or traction, or by operation using either internal or external fixation. Some fractures by their nature, such as intra articular where perfect reduction is required to prevent late osteoarthritis, or which cannot be reduced are treated by operation immediately. This is generally by internal fixation using plates, or more commonly intra medullary rods, rather than by external fixation which is reserved for extremely difficult fractures. If the fracture is treated conservatively by plaster it is essential to frequently X-ray the limb to make sure the reduction position is maintained and not lost. The generally accepted limits are less than 1 cm of shortening and less than 10 degrees of angulation in any direction including rotation. If this position is lost then surgical treatment would normally be undertaken. Current practice means that it is much more likely than not that surgery would be undertaken at an early stage for fractures, other than minor ones, because of the success of the surgery. Some fractures are complicated by neurovascular injury. Vascular injury needs to be considered and immediate angiogram or doppler carried out. Any fracture that occurs inside a tight fascial banding, such

as a tibial fracture in the lower leg, has a risk of bleeding inside this compartment and swelling of muscles as a result of injury which will make the compartment too tight and turn off the blood supply leading to avascularity of the area and long term disability. This needs to be fully investigated and treated and is a regular cause of litigation. Treatment would be by removing the plaster and possible measurement of the compartment pressures and doing a release of the fascia. Such damage is uncommon and is not always assessed properly. If it comes on after plaster application there is always a discussion as to whether the plaster is the cause or whether it would have happened in any event and this is usually very difficult to assess. In my experience it is unusual that plaster is the main cause of such a problem. Many fractures are â&#x20AC;&#x2DC;openâ&#x20AC;&#x2122; and communicate from bone to the outside, which can mean the fracture coming out through the skin from inside or dirt or grit being pushed from outside in. Cleaning of a fracture which has been contaminated is a major undertaking and infection is a major complication of this particular problem. Can infection be avoided? Not always but usually. Careful thorough debridement of all foreign material and dead tissue with application of antibiotics can usually control it although along with stabilisation of the fracture it should give rise to healing without infection. Ironically wounds are usually left open rather than sutured immediately and are then closed secondarily because this way infection risk is reduced. Infection itself is not negligent, the failure to treat it adequately of course is. Failure of initial management (at the early stage within 6 hours) or, if infection occurs, failure to treat it quickly by surgery and debridement could be negligent. Searching effectively for the infecting organism and treating it adequately by the right antibiotics is important as is the method of administration, usually IV. It may constitute negligence if this has not been done. Long term consequences of maltreatment can be substantial. A short angulated limb requires extensive long term treatment over many months and possibly will not reach the level that an uncomplicated properly treated fracture would have reached and may involve considerable time in an external fixator. Infection in bone is very difficult to eradicate and takes many months and expert treatment. Not all fractures heal in the normal expected time. Non union is not uncommon and can occur for a number of reasons. If the fracture does not unite in the expected time then a bone graft operation is usually effective. Failure to unite is rarely due to any mishap involving treatment and is unlikely to be negligent. Claimants themselves may have affected the way healing has occurred by either walking on the plaster too early and it collapsing or by smoking which is well known to devascularise the area and delay fracture union. q www.yourexpertwitness.co.uk

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No hands-on treatment allowed, claim physios

ack and neck pain patients in one area of the East Midlands are being denied physiotherapy treatment because of cost-cutting, according to a report from the Chartered Society of Physiotherapy. And even when they do get a referral, physiotherapists are barred from providing hands-on treatment, being restricted to two sessions of ‘advice and guidance’. The Institute made the claim following the release of a confidential report under a Freedom of Information Act request. It concerns a pilot scheme in Nottinghamshire using the controversial ‘any qualified provider’ system of allocating GP resources – the system being rolled out across the country. GP’s and physiotherapists say patients are forced to pay for additional private care instead, to receive any treatment and the ban has no clinical basis. Phil Gray, chief executive of the CSP, said: “What we see from this report is that patients are being denied appropriate treatment purely on financial grounds. “How can a physiotherapist be expected to treat a patient’s condition without touching them? There is no published evidence to support that approach. This farcical situation is a direct consequence of opening NHS services to this form of open market competition when the health service is facing big financial challenges. “This scheme is a disgrace but we fear it is a taste of what is to come in the coming months with the introduction of this form of competition across the NHS. Any qualified provider is a deeply flawed way to deliver healthcare and the Government simply has to recognise the dangers it poses for patient care. “It is not too late to change direction in the interests of better patient care.” q

Sportsmen get the funniest injuries!

ports injuries come in many varied forms, but injuries to sports players can be downright bizarre. Footballers in particular seem more prone than most, as a list published on the BBC website attested. The TV is one of the worst offenders, causing Rio Ferdinand to strain a knee tendon and David James to pull a muscle in his back. Goalkeepers figure prominently in the list, with Richard Wright falling from his loft to injure his shoulder and Dave Beasant suffering a broken toe from a dropped salad cream bottle. Alex Stepney pips him for the top prize, though – he dislocated his jaw shouting at his team mates! The publication of the list was prompted by Roberto Mancini’s refusal to reveal the cause of Sergio Aguero’s foot injury. q

RTA & personal injury expert is also a top sports injury specialist

rthopaedic and Trauma Services Ltd is a well-respected medicolegal practice based in Greater Manchester and established by Mr Sanjiv Jari, a specialist consultant in orthopaedic and trauma

surgery. Mr Jari has been undertaking medico legal reporting for more than 12 years and receives instructions for reports on road traffic injuries, ranging from low-velocity impact cases to multiple-injury, high-value, multi-track cases. He has also been instructed in an increasing number of clinical negligence cases. The complete medico-legal service that Orthopaedic and Trauma Services Ltd is able to offer solicitors includes arranging imaging (MRI, CT, bone scans and x-rays), medical investigations and treatments as directed in the medico-legal reports prepared by the solicitor’s chosen experts. Mr Jari qualified in medicine from the University of Manchester in 1990. His post-graduate training was in London, Manchester and elsewhere in the north west of England. He then worked in the USA for a year, at a prestigious sports medicine clinic treating, among other things, injuries in elite and professional athletes. He was appointed consultant in orthopaedic and trauma surgery at Hope Hospital (University of Manchester Teaching Hospital) in Salford in 2001. In addition, he is an honorary clinical lecturer at the University of Manchester. Mr Jari is the official orthopaedic surgeon of the British Olympic wrestling squad, having acted as a sports medicine consultant to the 2002 Commonwealth Games in Manchester and provided cover to the 2001 World Police and Fire Games in Indianapolis. He has been a medical consultant to USA Boxing and has written articles on sports medicine and injuries in Fighters magazine.

His NHS and private practice involves lower limb surgery and trauma surgery. He has set up a dedicated knee rehabilitation and triage service, in conjunction with specialist therapists. It includes biomechanical knee ligament assessment using a KT-1000 – a tool not generally available in the UK. His clinical practice includes keyhole surgery of the knee and ankle, reconstructive knee surgery including anterior cruciate ligament (ACL) reconstruction, cartilage transplantation in cases of sports injuries and early arthritis, knee-cap realignment surgery and foot and ankle surgery. He has a significant practice in arthritis surgery and specialises in minimally invasive total and half knee replacements, as well as hip replacement surgery. He has a specific clinical and research interest in ACL reconstructive surgery. He adopts a model of treatment very similar to the one he worked with in the USA, including accelerated rehabilitation protocols that allow patients to return to function and sport much quicker than normal. He is also one of a limited number of surgeons who performs cartilage transplantation surgery in the knee and ankle, which is a cutting-edge procedure not widely available in the UK. Mr Jari is the Founder and Co-director of the Manchester Sports Medicine Clinic, which has been running successfully for over eight years dealing with Orthopaedic conditions and Sports injuries in elite athletes and the general public. He is also a member of the British Orthopaedic Sports Trauma Association (BOSTA), the American Academy of Orthopaedic Surgeons (AAOS), the British Association of Surgery to the Knee (BASK), British Association of Sports and Exercise Medicine (BASEM), United Kingdom Doctors in Sport (UKADIS), the British Trauma Society and the British Orthopaedic Association. q www.yourexpertwitness.co.uk

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PIP implants

Commons Committee issues report

n 28 March the House of Commons Health Committee published its report on the PIP breast implant controversy, in which it urges the Government to “…agree a protocol under which a replacement implant can be inserted in the same operation if that is the wish of the woman, with the support of her clinicians.” That is contrary to current policy, which is for the NHS to remove implants fitted by the NHS that have failed, and nonNHS implants where the woman cannot have them removed by her original provider. In February the British Association of Aesthetic Plastic Surgeons issued a statement expressing concern that clinics claim ‘not to have the skills’ to treat problems stemming from rupture, but are sending patients to the NHS to undergo further surgery separately. BAAPS asserted that any trained and qualified plastic surgeon would be able to address the repercussions of rupture efficiently, warning that the initiatives could simply be a cost-containment exercise. Despite the massive furore over the issue since the controversy escalated last year, there is still no firm clinical evidence as to the safety or otherwise of PIP implants. In the UK a review by Sir Bruce Keogh reported that there was a lack of evidence to come to a definitive conclusion. The Health Committee reported that further evidence gathering is “urgently required”. The committee’s chair, Stephen Dorrell MP, said: “The information available is acknowledged to be insufficient either to allow the regulator to make evidence-based judgements about the safety or otherwise of implants that were in widespread use, or to allow patients’ clinicians to know whether their individual patient is affected. This is clearly unsatisfactory.” The body representing the private healthcare sector, Independent Healthcare Advisory Services (IHAS) broadly welcomed the report. In a statement issued on 28 March it said: “The Health Committee’s report will strike most IHAS members as accurate, balanced and forward looking. “Considered on evidence to be a low-risk item, breast implants have not been as rigorously monitored as higher-risk items such

as replacement joints, which are recorded by the National Joint Register to which IHAS members also report. We will fully support the re-instatement of a national breast register. We note, however, that there remains no evidence of lasting harm from implant failures, pending the gathering of further evidence to which our members are already contributing.” On 9 March the High Court recommended a Group Litigation Order in relation to the group action being pursued by women who received the implants. The Court ordered that any individual who wishes to pursue a compensation claim will have to join the group action, by being added to the group register of claims to be established in due course. The court appointed Hugh James of Cardiff as the lead solicitors who will be working with other firms to pursue these claims. Subsequently, on 15 March, the Medicines and Healthcare products Regulatory Agency (MHRA) issued a fresh Medical Device Alert for PIP breast implants manufactured prior to January 2001. q

Gunshot injuries catalyst for transplant advances

n 20 March doctors at the University of Maryland Medical Center performed what they claim is the most extensive full face transplant to date. The transplant included both jaws, teeth and tongue. The face transplant, formally called a vascularized composite allograft (VCA), was carried out by a team led by Eduardo D Rodriguez MD DDS, associate professor of surgery at the University of Maryland School of Medicine and chief of plastic, reconstructive and maxillofacial surgery at the R Adams Cowley Shock Trauma Center at the university. It marked the first time in the world that a full-face transplant has been performed by a team of plastic and

reconstructive surgeons with specialised training and expertise in craniofacial surgery and reconstructive microsurgery. Dr Rodriquez explained: "We utilised innovative surgical practices and computerised techniques to precisely transplant the mid-face, maxilla and mandible, including teeth, and a portion of the tongue. In addition, the transplant included all facial soft tissue from the scalp to the neck, including the underlying muscles to enable facial expression, and sensory and motor nerves to restore feeling and function. Our goal is to restore function as well as have aesthetically pleasing results." The research enabling such surgery to be carried out at the University of Maryland is financed in large part by the US military, in

order to carry out extensive rehabilitation to returning veterans with gunshot wounds. The patient in this case, Richard Lee Norris, was injured in a shooting accident, as was the recipient of the first full-face transplant in 2010, a Spanish man known only as ‘Oscar’. Indeed, the specialism of oral and maxillofacial surgery grew out of the treatment of wounds suffered by soldiers in both World Wars. Today oral surgeons must be dual-qualified in both dentistry and surgery. While much of their work is concerned with the effects of diseases such as oral cancer, they have a crucial role to play in treating non-accidental injuries to the face in court cases determining an appropriate level of compensation. q www.yourexpertwitness.co.uk

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Court ruling opens door for more mesothelioma claims

n 28 March the UK Supreme Court issued a ruling that insurance policies cover asbestos-related disease even after employees have left their job. It means the families of people who have died following exposure to asbestos – principally from the cancer mesothelioma – can pursue claims against the companies they worked for at the time they were exposed, not when the symptoms appeared. A number of insurance companies had sought to limit their liability to those who contracted the disease while at work. In his judgment, quoted in the Law Society Gazette, Lord Clarke said: “The whole purpose of these policies was to insure employers against liability to their employees. That purpose would be frustrated if the insurers’ submissions on this point were accepted.” Len McCluskey, general secretary of the Unite union, said: “It is a disgrace that insurance companies went to such lengths to shirk their responsibilities.” Significantly, the Association of British Insurers welcomed the ruling. Its director of general insurance and health, Nick Starling, said: “Today’s ruling by the Supreme Court has confirmed what most in the industry have always understood: that the insurer on cover when the claimant was exposed to asbestos should pay the claim, rather than the insurer on cover when the mesothelioma develops. This case has been pursued by a small group of ‘run-off’ insurers acting independently and at odds with the views of the majority of the UK insurance industry. “We are pleased that the Supreme Court has over-ruled the Court of Appeal’s judgment on this point as it ensures that claimants should get the compensation they reasonably expect. As such, the judgment provides clarity and certainty for both mesothelioma claimants and insurers. “As a result of the Court’s decision, it should now be possible to move forward to ensure that the much needed reforms are introduced to expedite the claims process for mesothelioma claimants. The ABI is in favour of introducing a pre-action protocol so that claimant solicitors and insurers are held to strict timelines to ensure cases are dealt with as quickly as possible and this could be underpinned by an online mesothelioma portal to improve the efficiency of the claims process.” The judgement was the third in two months on the subject. On 9 March the Court dismissed an appeal against compensation awards to victims who had been exposed to only small amounts of asbestos. That decision will mean an increasing number of people – particularly women – who have suffered ‘low-level’ exposure to the deadly material and have contracted mesothelioma will be able to claim compensation. Adrian Budgen, partner and head of Irwin Mitchell's national asbestos disease litigation team, said: “This ruling is a positive step towards proper acknowledgment of the risks that asbestos can pose

in schools and other public buildings, even if the amount of fibres which pupils, teachers and others come into contact with is relatively small.” Those rulings followed a decision in the High Court on 10 February, when Mrs Justice Swift awarded 92-year-old Dennis Ball £50,000 compensation for pain and suffering after he developed asbestosrelated cancer following his work for the National Coal Board and British Coal Corporation, bringing his total compensation to £73,890. The £50,000 award is considerably higher than the £35,000 figure recommended in the latest Judicial Studies Board (JSB) guidelines for cases where the duration of the pain and suffering is considered to be relatively short. Mrs Justice Swift is reported in the Nottingham Post as stating: “The importance that he attached to his independent way of life is clear. It is exemplified by the fact that, even now, he continues to pay rent on his flat, plainly clinging to the hope that he may one day be able to return there. “Thus, despite his age, his disease has had a devastating effect on his life. It is clear from the medical records that he has been well aware of the diagnosis and prognosis for more than five months now. “He is a private man and has been unwilling to talk about his prognosis. However, there is no reason to suppose that he is not experiencing a real fear about the ordeal that may be in store for him, together with distress at the knowledge of his imminent death and its cause.” R

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Jackson LJ urges more use of ADR in clinical negligence cases I

n his 13th lecture on the implementation programme of his Review of Civil Litigation Costs, Lord Justice Jackson listed eight recommendations specific to clinical negligence, in addition to a general recommendation that ‘undue complexity’ should be eliminated. In terms of the progress towards implementation, Lord Jackson said: “Out of that group, six recommendations either have been implemented already or will be implemented by 1 April 2013, the general implementation date. The other three recommendations have not yet been implemented and the jury is still out on them.” In addition, Lord Jackson made a general recommendation regarding a greater use of alternative dispute resolution (ADR). On that issue he said in his lecture:

“In relation to clinical negligence, it is interesting to see that the Marsh Report on the NHSLA [National Health Service Litigation Authority] commends greater use of ADR, in particular mediation, as a means of achieving satisfactory resolution of claims at proportionate cost. I am told by those who practise in this field that amongst some solicitors and counsel there is still a wall of opposition to mediation in clinical cases where liability and/or causation are in dispute. Attitudes have been changing steadily over time. I have no doubt that this opposition will be overcome, but a firm steer will be required both in CPD training and in judicial training.” In his conclusion he reiterated his belief that attitudes are changing, adding: “Hopefully the publication of the ADR

Handbook next year and the increasing emphasis on ADR in judicial training and CPD training will contribute to this process.” q

Doctor who failed to diagnose breast cancer suspended T he GMC has suspended a GP for four months after he failed to diagnose breast cancer in a mother of two in the West Midlands. Dr Hany Sadek Fahmy Hanna was one of the GP’s at the practice in Oldbury, which Emma Southall visited on numerous occasions over the period of a year. When she was finally correctly diagnosed she was given the awful news that she had advanced breast cancer which had also spread to her neck and subsequently to other parts of her body. She has since undergone a mastectomy and an operation to remove her ovaries. Laura Daly, a medical law expert at Irwin Mitchell, who is representing Emma in a civil claim against a number of GP’s, said: “Although we are in the early stages of investigating Emma’s claim for failures in her care, it would appear that there were numerous opportunities by several healthcare professionals to refer Emma to a specialist much earlier. “Emma is very grateful to the GMC for investigating the conduct of one particular doctor. They found that he had failed to provide good clinical care in that he did not adequately assess her condition nor make adequate records in her medical notes.” In a statement issued through Irwin Mitchell, Emma said: “I went back and forth to my surgery and each time I was told it was something really minor. I was reassured that I did not have cancer.

As time went on, I was in so much pain and was so worried about the lumps I had found. During one visit, Dr Hanna just sat back in his chair and said ‘Emma – what do you want me to say!’ I was made to feel like I was imagining my symptoms.” q

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Disabled twin wins multimillion pound compensation

he case of a twin left disabled following a car crash in 1998 made legal headlines in March when a compensation award was finally settled at the High Court in London after the victim’s injuries were assessed by comparison with his brother. Sam Boreham was left with permanent brain injuries when the car in which the twins and their mother were travelling hit a stationery vehicle. They were on their way to Manchester to watch Manchester United play, as an eighth birthday treat. Sam’s injuries caused on-going neurological problems, including a quick temper, lack of concentration and being unable to process thought and functions fully, according to the family’s solicitors, Irwin Mitchell. At the time it was decided that a true compensation assessment could not be made until Sam reached adulthood. Now that Sam has reached 21 the figure has been calculated by reference to his brother Ben. Stephanie Clarke, associate solicitor at Irwin Mitchell’s London office, is representing the family. She said: “Due to the complex nature of Sam’s brain injuries and the uncertainty of how these affect him, this settlement has taken some time to resolve, but

we’re pleased the family can now make plans for Sam’s future. “Sam did not have an easy childhood due to the accident and he missed a lot of school. His brain injuries meant he was better placed in a specialist school with one-on-one support which we helped secure with an earlier interim payment.” Sam now attends a local college with the help of a work ‘buddy’, who ensures he gets to and from lessons safely, but he won’t ever be able to work independently and the settlement takes into account his past and future loss of earnings, as well as his current and future care needs. Stephanie Clarke continued: “The full settlement approved today will allow Sam to eventually live on his own, with the help of a specialist carer, and continue with his college studies with one-onone support. It will also supply him with the lifelong therapy and rehabilitation he needs to eventually be able to move out of the family home and live independently with the support of specialist carers.” His mother Jane commented: “It’s been a long struggle due to medics being unable to confirm the level of permanent brain damage, but at least now we can all look ahead with the knowledge Sam will always have access to the quality care he needs.” q

Study confirms high failure rate of metal-on-metal hip implants

new study by researchers at the University of Bristol has confirmed that stemmed metal-on-metal hip implants are failing at much higher rates than other types, particularly those with larger head sizes and those implanted in women, in whom failure rates are up to four times higher. The study was published in The Lancet on 13 March, 10 days after the Medicines and Healthcare products Regulatory Agency (MHRA) announced that patients who have received stemmed metal-on-metal (MoM) hip replacements will need annual check-ups. In the study, a team led by Ashley Blom, Professor of Orthopaedic Surgery in the School of Clinical Sciences at the University of Bristol, analysed data from the National Joint Registry of England and Wales, including more than 400,000 hip replacements (of which 31,171 were MoM) undertaken between 2003 and 2011 that were tracked for up to seven years after surgery. They estimated failure rates for stemmed MoM implants based on different head sizes and compared them with implants made from ceramic and polythene. Stemmed MoM failed much more quickly than other types of bearing surface, with a five-year revision rate of 6.2%. Failure was related to head size, with larger heads failing earlier, corresponding to a 2% increase in the risk of failure for each one millimetre increase in head size. By contrast, ceramic-on-ceramic implants did better with larger head sizes. In women, failure rates for stemmed MoM implants were up to four

times higher than those of other bearing surfaces, they were also higher compared with men even with the same head size. The authors concluded: “Metal-on-metal stemmed articulations give poor implant survival compared with other options and should not be implanted. All patients with these bearings should be carefully monitored, particularly young women implanted with large diameter heads.” q

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Ecstasy users have poor memories, says study U

sers of the illegal dance drug ‘ecstasy’ have performed worse on memory tasks than people who have never used the drug, according to a researcher at Edge Hill University in Merseyside. Philip Murphy, Professor of Psychology at the university, reaches this conclusion in a scientific paper published in the journal Human Psychopharmacology: Clinical and Experimental. Based upon a systematic review of scientific studies of ecstasy use, he examined the performance of people who had used the drug compared to that of non-users in memory tasks involving different types of visual displays. Professor Murphy explained: “We divided the tasks administered to participants in 52 studies into three categories, based upon the types of demand made by the tasks in question. Within each category we used a statistical technique known as meta-analysis. This method showed that the performance of the users was significantly worse for each task category than the performance of the non-users. “All of the tasks had been administered under laboratory conditions which would have been free of distractions, so that even where performance differences between users and non-users were small, the performance of ecstasy users on tasks in the outside world making similar demands

could be problematically impaired compared to the performance of non-users. The tasks involved such things as recognising whether or not abstract patterns had been previously presented, and remembering sequences with which various parts of patterns had previously been highlighted.” He acknowledged that research to test the memory and other aspects of mental functioning in users of a particular drug is notoriously difficult due to the potentially distorting effects of other drugs used, as well as differing personal and social characteristics. “It was common practice for the studies we examined to have taken steps to eliminate the possible confounding of their results,” he explained. “While no one study would ever be foolproof with regard to such potential issues, our results, which are based upon combined sets of data from a range of studies within each task category, serve to heighten our concern regarding the potential adverse effects of using ecstasy.” He added: “Where ecstasy is concerned it would be impossible, not to mention completely unethical and illegal, to give the drug to a group of people for, say, five years, keep them under surveillance to ensure that they used no other drugs, and then compare their brain functioning and task performance to a group of non-users. Therefore, the

authors of the studies we reviewed designed their research and analysed their data in order to minimise the effects of such potential distortions, and the overall pattern of results does show the performance of ecstasy users to be poor compared to non-users.” q • Professor Murphy worked on the study with co-authors Dr Raimondo Bruno of the University of Tasmania, Professor John Fisk of the University of Central Lancashire, Dr Catharine Montgomery of Liverpool John Moores University, and Dr Michelle Wareing, Ida Ryland and Joanne Hilton from Edge Hill University.

‘Padded cell’ school to close following naming

eech Tree School, the school at the centre of the so-called ‘padded cell’ controversy, in which a young man was repeatedly kept in a seclusion room, is to close. Scope, the charity which runs the school, announced the closure following the lifting of a court order preventing the naming of the school or the local authority involved in the case – Wigan Borough Council. The lifting of the order brought the case back into the spotlight. In March last year the Court of Protection ordered that the use of the seclusion room – known as the Blue Room – was unlawful. Following the lifting of the anonymity order the mother of the youth, known only as ‘C’, has described the progress he has made since. In a release issued by solicitors Irwin Mitchell, she is quoted as saying: “This entire period has been extremely traumatic for my sons and I, and it’s with a feeling of immense joy and relief that we feel C can now begin to lead the fulfilling and enjoyable life he

should have done previously.” In a statement, Scope commented: “As an organisation we are extremely sorry that this young man didn’t get the support he needed. At every stage we had the best of intentions but the case proved to be beyond our expertise and we didn’t recognise soon enough that we were not the right organisation to work with him.” Mathieu Culverhouse, the specialist in cases related to the human rights of vulnerable members of society at Irwin Mitchell, who helped the family win its battle for justice, said: “His life has dramatically improved and it’s a triumph for C, the family and the Judiciary who were involved in this case to hear that he is now enjoying his life. “This shocking case is one in which the responsible authorities failed to obtain the legal authorisation needed to deprive someone of their liberty.” q www.yourexpertwitness.co.uk

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