Your Expert Witness Feb by DMMonline

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OPENING STATEMENT by Martina Wilson, Business Development Manager Lawful Intercept Evidence – Beyond the media hype of hacking

Guilty as charged???

APIL – Accreditation scheme instils security and confidence

OUR easy-to-use online directory puts you a mouse’s click away from new clients

MEDICAL ISSUES

Diabetes, DVLA, driving and low blood sugar

Is conviction based solely on DNA evidence possible?

Male breast cancer

Not all breast lumps are cancer

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Risk assessment

BMC register of expert witnesses

Mortgage default – the involvement of the expert witness

A legal presumption and interpretation of plans in land law

Legal expertise at your service – from RICS

What’s magic about mediation?

Maternal request caesarean section: psychology vs. ethics and protecting the balance

Elective caesarean section – ‘is she too posh to push?’

The law and technology: The catch-22 continues!

Substance misuse as a consequence of childhood abuse

Workplace drug testing: different matrices – different objectives

Accuracy: a measure of quality

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Sudden Cardiac Death (SCD) / Sudden Arrhythmic Death (SAD)

Ensuring reliable medical evidence

Understanding dual diagnosis

Chronic pain after an accident

Post Traumatic Stress Disorder

Osteopathic case study – The case of the ‘trapped nerve’

Avoid the penalty of football injuries

Whiplash injuries

Your Expert Witness

Advertising enquiries: 1 Elm Road, High Lane, Stockport, Cheshire SK6 8HR Tel: 0161 850 1680 Fax: 0161 850 0918 email: kevin@dmmonline.co.uk Business Development Manager: Martina Wilson Email: m.wilson361@btinternet.com Copyright Your Expert Witness. All rights reserved. No part of this publication may be copied, reproduced or transmitted in any form without prior permission of Your Expert Witness. Views expressed in this magazine are not necessarily those of the publisher.

YWS

Opening Statement PHONE HACKING is just one of the many important legislative issues covered in this issue. The subject is currently at the heart of a very high profile legal case and on the facing page Ross Patel of Afentis Forensics takes an in depth look at lawful intercept evidence. As the Metropolitan Police launch a new investigation into phone hacking amid ‘significant new information’, they have vowed to leave ‘no stone unturned’. The current phone hacking row is a result of the increasingly complex fallout of a 2006 court case which saw the News of the World’s (NoW) royal editor and a private investigator jailed for hacking into the mobile phones of royal aides. A series of inquiries and legal cases is exploring just how widespread the practice was, with implications for the police, celebrities and politicians. As claims that phone hacking was widespread continue, more and more celebrities and public figures are launching civil legal actions against both the paper and the police. The 2006 case first revealed several public figures had been hacked. Two of them – Gordon Taylor and Max Clifford – brought private cases against the NoW and received reported settlements of £700,000 and £1m respectively. The cases were settled before key documents were revealed in court. It is against the law to intercept voicemail messages on mobile phones. So if NoW executives acted illegally by ordering their reporter to hack the phones, then they could face charges. The ongoing allegations also have the potential to damage the police, politicians and Rupert Murdoch’s business interests. The Met has been accused of failing to inform many of the NoW reporter’s alleged victims when they recovered files from his home which referred to a long list of public figures. This accusation has resulted in the current Met investigation. Speaking about the investigation, Acting Commissioner Tim Godwin told the Metropolitan Police that the inquiry “Will be very robust and will be under scrutiny as it should be. “It will restore confidence in victims who feel they have not been given a service. It will be with no stone unturned. We have some of the most skilled investigators in the country and you will be proud of what they do.” He added that the force was not afraid to be held accountable at the end of the process. The inquiry has been transferred to the Met’s specialist crime directorate and will be led by Deputy Assistant Commissioner Sue Akers. With warm regards

Martina Martina Wilson Business development manager

Hacking

by ROSS PATEL of Afentis Forensics

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elephone hacking’ and ‘liquid bomb plot’ recordings have been widely reported in the media lately, raising questions about balancing personal privacy and the legality of access to digital correspondence. The technically correct term for the interception of communications traffic is ‘lawful interception’, and this article provides an insight into its role in tackling serious and organised crime. ‘Telecommunication evidence’ is the broad term used to describe any data/information retained or otherwise available from the communication service provider (CSP, such as ‘T-Mobile’ and ‘Orange’), and which has probative value for investigative or legal purposes. These records may be available for disclosure only following due authorisation by the relevant Police and Intelligence Liaison Officer at the telecommunication operator and/or in response to a Court Order lodged under Section 22 of the Regulation of Investigatory Powers Act 2000. Allied to the RIP Act and DP Act legislation is the lesser known legal instrument, Directive 2006/24/EC. Formally adopted in March of 2006, the Directive requires member states to ensure that communications services retain specific data for a period of between 6 months and 2 years. Retained data can provide information regarding the location of an individual, the source and destination of communication as well as the time or date a call was made. As specified in Part 11 of the Anti-Terrorism, Crime and Security Act 2001, telecommunications companies are regulated by Government and are allowed to retain certain data. These records and materials are commonly referred to in the industry as ‘pen registers’ – information that shows who was in contact with whom and when. The actual text from an exchanged message or the spoken words in a conversation are entirely separate and the subject of ‘lawful intercept’ investigations. At a technical level investigating agencies throughout Europe have standardised the polices and best practice drafted by the European Telecommunications Standards Institute (ETIS) guidance #201-671. The specification mandates that the ‘handover interface’ is subdivided into three services, referred to as ‘ports’, each performing a different purpose according to the type of information being exchanged. A ‘lawful authorisation’ describes the kind of information; Content of Communication (CC) and/or Intercept Related Information (IRI) that is required by this Law Enforcement Agency (LEA), the interception subject, the start and stop time of LI, and the addresses of the LEA’s for CC and/or IRI and further information. The generic handover interface adopts a three port structure such that administrative information (HI1), intercept related information (HI2) and the content of communication (HI3) are logically separated. This is illustrated in the following representation, showing LI content reaching the Interception Interface (II) and then being duplicated to the Law Enforcement Monitoring Facility (LEMF): As a single interception party may be the subject to interception by different LEA’s, it is technically possible to separate these interception measures. For instance, if two targets are communicating with each other, each target can be dealt with separately. The ETSI #201-671 standard clearly states that ‘integrity can be an issue when lawful intercepted data is used as evidence in a criminal investigation. It must be provable that the data is unaltered and an exact representation of the intercepted communication’. As such, recommendations are made as to the means by which communication may be enciphered or mathematical hashes applied that will assist in identifying corruption or modification. In September 2009, in the aftermath of the ‘liquid bomb plots’ and Operation Overt, the criminal trial closed without a conviction. A serious legal argument had been raised as the prosecution sought to introduce crucial evidence from intercepted communications. The admissibility of ‘lawful intercept’ evidence into court proceedings is relatively straightforward. Whilst the product is not yet admissible in the United Kingdom, if an investigation has been conducted appropriately overseas, in a jurisdiction where such practice is considered lawful and the procedure complies with local custom, then the material can be admitted into domestic (i.e. UK) proceedings. Britain is almost alone in completely prohibiting the admission of intercept material in court proceedings. However, this is likely to change in the coming months as LI evidence is, according to Sir Ken Macdonald QC, “an absolutely critical forensic tool in criminal trials …quite invaluable”. q

Lawful Intercept Evidence

Beyond the media hype of

Guilty as Charged??? by PAUL VELLA of Evidence Matters

vidence Matters Ltd. has been providing Expert Witness services in defence cases for a decade now, and it never ceases to amaze me how odd and inaccurate indictments can be in cases involving computer evidence, especially in cases involving indecent images of children. This leads me to often ask solicitors if they know what their client is actually charged with, especially if they are about to plead. The first time we encountered a serious problem with an indictment was in 2003, when we discovered that a defendant had been charged with indecent images that had been recovered from an unrelated

defendant’s computer. I don’t know how the police computer forensics lab had managed to mix up the data, but our defendant was forced to sit through an interview being shown indecent images of children. Naturally, the interviewing officer didn’t believe the defendant when he kept responding with “I’ve never seen that before in my life”! Not all mix-ups are quite as dramatic of course, but just today as I started writing this article, one of my examiners told me that in the case he is working on, the defendant has been charged with forty-one indecent (video) images of children, when in fact there are only four. The police accepted this was due to a typographical error that hadn’t been spotted by either the police or the CPS. Earlier this year we had a similar incident where ninety-four indecent (SAP level 3) images were charged as a result of a typographical error on the part of the police examiner – there were in fact only four (SAP level 3) indecent images of children on the computer. A significant difference for the sentencing judge to consider. Often, the problem is not as simple as a typographical error, but rather a technical one, where the police examiner doesn’t understand the technical issues. I dealt with a case this year where the police had recovered more than five thousand Level 5 indecent images of children. The problem, however, was that the forensics software had recovered each frame of a deleted video file individually. Had the file not been deleted, the forensics software would have recovered just one video file and the indictment would have looked very different. More importantly, the defendant would probably have pleaded much earlier and saved a lot of unnecessary court time. This was a case of a police examiner simply not understanding the technical nature of the video file. Recently, we have been working on a case involving extreme pornographic images – several thousand images have been identified by police, however more than a third are neither extreme, nor in some cases, pornographic. I am at a loss as to what criteria has been used to select these images, but this is nothing new. I once dealt with a case where the defendant had been charged with two Level 1 images and fifty at Level 5. The fifty level 5 images, whilst unpleasant, did not involve children, and were not therefore illegal at the time. Someone clearly needed to

understand that the Protection of Children Act required children to be in the photographs. The problem is getting worse. Technical issues of where the images are and how they got there aside, the biggest problem seems to be that there is little or no objective checking going on. The CPS often, it seems, takes the word of the police report as to whether something is indecent or not without verifying it for themselves. These days police often use a very good tool called C4P (Categorizer for Pictures). This tool, provided by a Canadian police force, allows automatic categorisation of indecent images based on previous categorisation by police, thus saving time and money. A central database of file ‘signatures’ is maintained and distributed – when the software finds an image that has already been categorised by a user in another part of the country as indecent, it automatically puts your image into that category. The problem is that it relies on every single user of the software being accurate and using the same standard of categorisation as yourself – the old adage of ‘garbage in, garbage out’ applies here. We have seen countless cases where the same picture (albeit different sizes and therefore different files) has been categorised at different levels within the same case simply because no-one from the prosecution has double checked the findings. Just last week, upon our request for a copy of the computer evidence, a Police Force admitted they had ‘lost’ the extreme pornographic images from the computer (originally discovered during a speculative search) and the matter was discontinued. The

defendant was on the Sex Offenders Register and a guilty plea to the ‘non-existent image’ would have likely impacted on his liberty. We see these basic errors with alarming regularity, which is why Evidence Matters Ltd. ensure that we don’t examine the data in isolation, but examine the case in its entirety, even if that means reexamining thousands of images individually and re-categorising them correctly. q

APIL – Accreditation scheme instils security and confidence by DENISE KITCHENER, Chief Executive of the Association of Personal Injury Lawyers

n injured person needs to know he is going to be represented by a good lawyer. The Association of Personal Injury Lawyers (APIL) accreditation scheme gives that person the security and confidence that he will be represented well. APIL is a not-for-profit campaign organisation which is dedicated to helping people who have been injured through negligence. The association has more than 4,600 members across the UK, the Republic of Ireland and overseas of which 1,265 are accredited by APIL. APIL accreditation is an industry recognised kite-mark of best practice which enables injured people to select a lawyer or firm which, in the opinion of APIL, will represent their best interests. Litigation can be time consuming and stressful for an injured person and it is important that he feels safe in the knowledge he has picked a good lawyer. Using an APIL lawyer enables the injured person to go straight to a qualified solicitor directly. All accredited members are displayed on APIL’s website – www.apil.org.uk – which enables a member of the public to select a lawyer on his own. Injured people can choose by postcode and by the type of claim they have. Those who already have a lawyer can also use the website to check whether he/she is APIL accredited. APIL accredited lawyers have to meet high standards of practice before they are recommended to the general public. For instance, once a lawyer is accredited as a senior litigator he can then improve his credentials further by becoming a fellow of APIL and then a senior fellow, after reaching high levels of skill and experience. APIL’s accreditation courses are all overseen by an independent outside body, the Academic Quality Council, to ensure that they meet high standards. All APIL members also have to agree to abide by the APIL consumer charter and code of conduct. Accredited members usually have five years’ experience in running their own cases unsupervised. They are regularly monitored by APIL throughout their accredited membership of the association to ensure they have completed a minimum 16 hours personal injury training each year. This requirement is set by APIL to ensure that those lawyers who have been accredited in the past continue to keep up to date with all the latest developments in personal injury law, such as changes to the rules. Legal firms have to satisfy further criteria to obtain the APIL corporate kite-mark. There are currently 246 APIL accredited offices in the UK. APIL accredits both legal practices (for solicitors) and chambers (for barristers). For a firm to be accredited in its entirety, all of its branches must be accredited in their own right. A number of offices in any one practice can be accredited individually, but this does not mean that the entire company is accredited as a whole. For a practice to become accredited there must be at least one senior litigator to supervise every ten lawyers who earn a fee in that practice. For a chambers there must be one accredited barrister to supervise every five.

An accredited office must demonstrate that it is committed to client care and to the training of its staff. It must prove to APIL that lawyers are given opportunities to develop their skills and are kept up to date with key areas of procedure, damages, costs, funding and liability. APIL monitors all elements of its accreditation scheme with each accredited office. There is a particular focus on training logbooks for individual lawyers and APIL also monitors the quality of the training provided, ensuring it adheres to the association’s high standards. Not only does APIL strive to improve standards in personal injury practice, but it also campaigns for improvements to the law. APIL’s executive committee, which comprises of elected members, responds to Government consultations and informs policy makers of how proposed changes to the law would affect the interests of injured people. APIL works hard to highlight current shortcomings of legislation which may not be on the political radar – and calls on those in power to make changes for the good of injured people. The ethos of putting the injured person first is a constant in everything APIL does, from providing injured people with a direct line to good lawyers and calling on the Government to do the right thing. Only an ethos like this will reduce the amount of negligent injuries which occur in the UK. q

Risk Assessment by JIM TASSELL MSc DipSH CMIOSH

he report of a recent Court of Appeal decision in the ongoing case of Uren v Corporate Leisure (UK) Ltd [2011 EWCA Civ 66] prompts me to review the present state of play of health and safety risk assessments. The case relates to the circumstances of a serious accident that happened to Mr Uren, aged 21, one of the participants in a ‘Health and Fun Day’ at his RAF station. He suffered such severe neck injuries when participating in an ‘It’s a Knockout’ type event that he is now tetraplegic. It’s just about the nightmare scenario for any event organiser, down to the likes of the primary school sports day or church fête. Essentially risk assessment is a rational structured analysis of the practical effects of real life activities. In the health and safety field it is used to examine an organisation’s effects on individuals like its employees, customers or even, like here, participants in fun activities. The nature of the impacts range from minor scratches to catastrophic injury and long term ill-health. The various safety regulations dealing with risk assessment all share the requirement for a record to be made of the significant findings. In this case, as one would expect, there was extensive examination of such records and the processes behind them, which were found to be inadequate. It seems fair to conclude that assessment records need to be sufficient to enable any enquirer to see the risks through the eyes and mind of the assessor at the time that assessment was made. The judgement in this case supports the concept of ‘keep it simple’, albeit with the challenge to apply ‘the reasoning processes of an intelligent and well-informed mind’. This may sound daunting from the perspective of a small voluntary group. They may sit under the regulatory radar so do not need to record their assessments formally. Nevertheless some simple record could be of great value, particularly if energetic events are involved. Even a three-legged race carries the risk of a broken leg when played by exuberant adults of differing sizes! When examining risk assessments one has to avoid the temptation of hindsight. Given that many businesses have getting on for 20 years worth of assessments, avoiding hindsight is likely to involve starting at their beginning and following their development. It is also important to keep a wide view; accidents do not respect the convenient categories of hazard that assessors generally use. The various aspects of causation may lie across several different records. Staying with the three-legged race example, there could be various distinct strands of causation like ground conditions, pairing up and briefing of participants and even sobriety. These may lie in different parts of the overall assessment but on review will need to be considered together. This case draws attention to two difficulties faced by a risk assessor; hypothetical activities and severity of outcome. The accident involved a pool of water with tubular sides like a giantsized paddling pool. This particular pool was rather large and probably had never been used for the game in question before. To some extent therefore the assessment had to be hypothetical. The case emphasises how important it is for those responsible for practical delivery of precautions to be on the look out for unexpected variations. Risk assessment is not a one-off exercise, it is ongoing. At something like a fun day there may not be time to make a written update of an assessment but those in control still need to watch out for and respond to the unexpected. There seems to have been considerable debate over how

the possible worst case scenario should be reflected in a risk assessment. Is it right to base an assessment on the remote possibility of someone suffering catastrophic injuries, as sadly happened on this occasion, or is it valid to focus on the most likely effects? Risk assessment is not the same as accident prediction. It is reassuring to see a realistic approach being adopted when trying to find a proper balance to this point. Focussing on the unlikely extreme injury may skew it excessively and inappropriately. So, for readers who at this time of year are planning summer events, please bear these points in mind: • Even if you are a small group of volunteers, plan your event • carefully and build risk assessment into that process – many • voluntary organisations publish useful guidance • Keep your assessments simple but clearly focussed and make • a note of them • Make sure that you implement proper precautions • On the day, be on the watch for things going off script or • additional risks appearing and respond promptly • And when you sit down afterwards, exhausted, don’t forget to • have a de-brief to learn lessons to pass on to next year’s • organisers! q

BMC register of expert witnesses

ritish Mountaineering Council (BMC) is the national representative body for climbers, hill walkers and mountaineers. Its objectives include encouraging, promoting and developing the interests of British mountaineers. It is also concerned to encourage and promote safety and good practice and operates a scheme to provide a range of insurance services to mountaineers. It is in this context that BMC has an interest in litigation that arises from mountain activities. One reason for that interest is to identify if there are any lessons to be learnt which might be relevant to the promotion of good practice. BMC representatives sit on the board of management of the National Mountaineering Centre at Plas-y-Brenin in Snowdonia which provides a wide range of training courses and BMC also arranges its own specialist training courses and guided mountaineering activities. BMC has also held the view that it is in the best interests of the mountaineering community that legal cases arising from mountaineering are correctly determined. That is, that the court is fully informed about the mountaineering context when considering the relative merits of the cases advanced by claimant and defendant (not BMC trying to second guess the Court). Clearly this is where the role of the expert witness is absolutely crucial. Mountaineering related accidents can arise from a wide spectrum of environments and an infinite range of circumstances. BMC uses the phrase ‘mountain related’ to encompass every activity and situation which might involve climbers, hill walkers and mountaineers. To better explain this a range of examples follows: • Hill walking in the Peak District • Mountain walking in the Scottish Highlands in winter • Rock climbing on small cliffs: 10 – 30 metres

• Rock climbing on mountain cliffs: 50 – 300 metres • Rock climbing on an artificial indoor climbing wall • Snow and ice climbing • Ski mountaineering • Managing property – mountain refuges, bunk rooms and club huts • Health and safety issues • Discrimination issues – the full range including disability • Child protection – typical contexts include training, competition and • overnight accommodation • The duty of care to companions and third parties • Obligations of guides and instructors • The mountain rescue environment • Access and conservation issues • Product liability re climbing equipment The list could be endless BMC is aware of occasions when a Court has been misinformed and these include, for example: • A case arising from an accident on an artificial indoor climbing wall where • the expert witness had experience in the construction of sports centres • but none at all regarding climbing techniques and managing safety in a • vertical environment; • A case involving the failure of an anchor point in which a mountaineering • expert, confused by a line of questioning and not recognising the legal • implications, was pushed into a ‘yes/no’ answer that should have been • ‘maybe’. This is not to suggest that the Court came to an incorrect judgment in consequence, but the role of the Judge is clearly more difficult when the evidence of an expert witness is inadequate.

by NICK COLTON BMC Deputy Chief Executive Officer and MARTIN WRAGG Solicitor and BMC Honorary Legal Advisor Whilst an expert witness should have the common sense and integrity to refuse an appointment in a case in which he/she lacks expertise, and is therefore not competent, it is primarily the responsibility of the lawyers representing the litigants to ensure that an appropriate expert witness is identified. BMC recognised that it could provide assistance by creating the register of expert witnesses on the recommendation of its honorary legal advisor. This was a lesson learned from participation in the activities of the International Mountaineering Association where it was reported that the German and Austrian Federations provided mountain training courses in the alpine environment for the judiciary in their respective countries. BMC suspects that may be a step too far for the British judiciary, but was aware that there were already significant numbers of people in the mountaineering community with experience of acting as expert witnesses and others with less experience who wished to acquire it. Typically these were mountaineering professionals, guides or instructors but there were, or had been, others including eminent mountaineers and those involved in equipment manufacture. Indeed the broad range of activities suggested that there could be relevant experts from many different fields. The key was to ensure that as well as having experience in a particular field the expert witness also had an understanding of the legal environment before being included in the Register. In some cases that experience could have been acquired by acting as an expert in a number of cases and in others by training. BMC determined that existing experts wishing to be admitted to the Register must be vetted and that would involve the individual in completing a personal declaration, attending an interview/briefing session and complying with BMC conditions of registration. These conditions included the filing of an annual report providing brief details of cases in which the expert had been instructed. The intention to create the Register was published in climbing circles and attracted a strong interest from a number of climbing professionals. Indeed there was such demand for training that BMC agreed to arrange a two day training course in conjunction with its honorary legal advisor. Other lawyers were roped in (forgive the pun) to help deliver the course which was well received and another is now in planning. There are now 25 expert witnesses on the Register offering a range of skills and experience. The Register covers Great Britain indicating the location of experts by country together with a brief statement of an individuals experience, an expert witness CV and contact details. BMC does not make any recommendation about the choice of expert but anticipates that the Register will assist a lawyer to draw up a short list of possible appointees. BMC would welcome feedback from any lawyer that has made use of the Register to identify a possible expert. q The BMC Register is available online at www.thebmc.co.uk/ expertwitnesses

www.uk-irishtaxservices.co.uk

Mortgage default – the involvement of the expert witness by DAVID J. PARISH, FRICS, MEWI

onsider the following scenario. In reliance upon a valuation report prepared by a chartered surveyor, a lender grants a mortgage to a borrower. Within a short period of time thereafter the borrower defaults and the property is repossessed by the lender. The property is then placed on the market for sale and is sold by the mortgagee in possession. Unfortunately the net proceeds of sale are insufficient to cover the outstanding mortgage and, as a consequence, the lender suffers loss. What happens next? The lender will inevitably wish to consider whether the original mortgage valuation was correct within the usual tolerances. The solicitors acting on behalf of the lender will normally instruct a chartered surveyor with experience in the valuation of that particular type of property to undertake a preliminary retrospective valuation report. The chartered surveyor appointed will also be one with experience in acting as an expert witness bearing in mind that court proceedings might subsequently follow. It is often difficult to arrange access for internal inspections as the new owners invariably are unwilling to co-operate. As a result the inspection usually has to be based upon an external inspection only, assisted by copies of the original mortgage valuation report and any post possession valuation reports obtained by the mortgagee prior to the sale in possession. Estate agents’ particulars when the property is sold in possession are often very helpful. The valuer appointed by the lender’s solicitors will normally undertake an external inspection of the subject property and will also view any other relevant comparables within the area. He must make extensive investigations as to the state of the market at the effective date of valuation, i.e. the date of the mortgage valuation report. On completion of his investigations the valuer will then issue a report giving his opinion of the market value of the property at the effective date together with his view as to the highest valuation which could have been attributed to the property by a reasonably competent mortgage valuer based upon the assumed condition of the property. The valuation must, of course, be supported by evidence of sale prices achieved for other comparable properties in the locality. On receipt of this report the lender’s solicitors will then advise upon whether the original mortgage valuation was negligent. However, the original mortgage valuer will not be liable for any losses sustained as a direct result of a fall in the market between the date of the mortgage valuation and the date of the sale in possession. Similarly, there will be no liability on the original mortgage valuer for any deterioration in the condition of the property between those two dates. If it transpires the original mortgage valuation was in excess of the highest figure that could have been attributed to the property at the relevant date then it is likely legal proceedings against the original valuer will follow. As part of the claim the chartered surveyor undertaking the retrospective valuation report will then be required to prepare an expert witness report for the court, which is normally in draft form initially. This will be a detailed report giving a full description of the property including location and assumed state of repair at the effective date. The report will set out the duties of the mortgage valuer and will

comment upon evidence of sales of comparable properties in the area to support the valuation prepared by the expert. Comment will also be made upon the validity of the comparables (if any) relied upon by the original mortgage valuer. The expert witness will set out both his own opinion of value and the appropriate margin for error. As valuation is essentially a matter of opinion within a reasonable range, an allowance must be made to reflect differences of opinion between valuers. As a general rule a margin of 10% can be regarded as appropriate in many cases but this could be higher or lower dependent upon the type of property and availability of comparable evidence. As a result the margin of error could, for example, be higher in the case of a unique property in an isolated location where there was little or no comparable evidence available. Conversely, if the property was located on a large estate of identical houses with an abundance of comparable evidence the margin of error would probably be lower than 10%. In preparing his report an expert witness must ensure that it complies with the following: (a) The RICS Practice Statement Applicable to Surveyors acting as Expert Witnesses. Furthermore, the report must contain the required declaration to this effect. (b) Contains the required Statement of Truth. (c) Contains a Declaration of Awareness of the Expert’s duty to the Court and of Part 35 of the Civil Procedure Rules. In essence the chartered surveyor is acting as an expert witness and his report must, therefore, be wholly objective and unbiased. It must be the same irrespective of who is paying for it and it must not be slanted in favour of the mortgage lender by whom he is instructed. The expert witness must bear in mind that at all times his overriding duty is to the court in relation to the contents of his report and its conclusions. The expert witness is, therefore, involved in a two stage operation. Firstly, in preparing a preliminary retrospective valuation report and, secondly, a draft expert witness report which will need to be engrossed and completed if the matter subsequently proceeds to court. There is clearly no point in the lender incurring the expense of a detailed expert witness report until it has received the appropriate initial valuation advice. It is, therefore, most important that the initial advice tendered by the expert is correct before the costs of legal proceedings are incurred. q • David Parish is Chartered Surveyor in Private Practice and is a member of the Expert Witness Institute.

Profiling...

Nigel Hartley BA BArch BTP RIBA MRTPI, Director of Chestnut Planning

he town planning system is something that most people know little about and yet a surprising number end up experiencing problems resulting from it. Individuals often find that getting permission to extend their houses is not as straightforward as they might have hoped and businesses that are focussed on their products and customers may inadvertently overlook planning requirements, according to Nigel Hartley, Director of Chestnut Planning. “I have spent my career helping a wide variety of people find their way through the planning maze” said Nigel. “Just now the planning system is undergoing another upheaval with the Localism Bill containing proposals for major changes. Optimists think that more local involvement may be the way to reduce the delays and confrontation that too frequently arise. Pessimists fear that there could be even more delays and obstruction of development proposals that are needed for economic progress and to provide sufficient housing. Either way I think we who work in the system will be kept busy.” Nigel is unusual amongst planning consultants in that he is both an architect and a town planner. After graduation from Liverpool University in 1982 he qualified as an architect, however he soon got interested in town planning and completed a planning degree in 1990, becoming a member of the Royal Town Planning Institute. He has been active in the planning profession ever since, including being a member of the Institute’s council and policy committee. Nigel’s practice is Chestnut Planning which he set up in 2003. Providing planning advice on a wide range of projects, with his dual qualifications giving him particular strength in projects where key issues are visual impact, appearance, conservation, implementation and physical construction. Says Nigel, “My projects include new build, extensions and conversions, residential, commercial, industrial, leisure and healthcare. Projects involving conservation areas and listed buildings have always featured in my caseload. My clients are both public and private sector and, as well as helping people get planning permission, I have helped local residents to oppose proposals which would have an adverse impact on their areas. “Planning appeals have required me to appear as an expert witness at public hearings and inquiries. Planning issues also arise in other areas such as landlord and tenant disputes and I prepare reports for court proceedings and give evidence on town planning and design issues relating to these.” Chestnut Planning is a sole practitioner practice drawing on the expertise of associates where required. Nigel personally deals with all clients and is responsible for the running of projects. He finds collaborating with other specialists including planning and property lawyers, transportation experts and highways engineers, ground contamination specialists, ecologists and landscape architects one of the most interesting parts of his working life, especially working with lawyers to help their clients solve planning related problems. q

33 Trinity Church Road, Barnes, London SW13 8ET T 020 8255 8560 F 020 8563 8488 M 07973 753867 E nigel.h@chestnutplanning.co.uk

A legal presumption and interpretation

of plans in

by CARL CALVERT MSc MA PgDLaw FRICS

n the appeal case of Steward v Gallop & Gallop [2010] EWCA Civ 823 there are some useful pointers to those engaged in boundary disputes. I shall pass over the fact that many judges find that disputes between neighbours about boundaries are often about land which has a trivial value compared to the costs of litigation and in some instances, in my experience, the losing party may well lose their house because of the costs incurred. In summary, the Judge in the County Court found for the claimant and the appeal was in respect of the question as to whether or not the Judge had erred in respect of: a) the significance of a deed; b) the edge and ditch presumption; and c) the matter of adverse possession. In the conclusion by Lord Justice Lloyd, he stated, “I hope that it may not be too late, with the prospect of an even larger costs liability at stake, for the parties even now to come to an agreed resolution of the dispute.” In my experience some parties have continued with litigation in an effort to recover some of the vast costs incurred, and in many instances have lost even more. The claimant, Mr Steward, alleged that Mr and Mrs Gallop had entered his land and removed part of his hedge marking the boundary, replacing it with a fence which in part encroached on his land. The evidence by Mr Steward’s expert was that the dimensions given in a Deed of Partition in 1915, when set out on the ground, coincided within 200mms (8 inches) of an existing timber post and that what appears to be a hedge on that plan is indicative only and could not be taken as the boundary position. The expert for Mr and Mrs Gallop gave the opinion that the land had been farm land at one time and that the owner had dug a ditch to mark the boundary, thrown the spoil onto his side of the ditch and later planted a hedge (the hedge and ditch presumption). The boundary was on the southern (Mr and Mrs Gallop’s) side of the ditch. From the evidence Lord Justice Lloyd stated that, “It is now clear that there never was a ditch to the south of the hedge… It did not, however, by itself prove Mr Steward’s case… nor did it deal with the issues of adverse possession, raised by both sides as an alternative to their main cases.” The conclusions of the Court of Appeal were that; 1. Both experts showed that the measurement (of 125 ft) come to the south (Mr and Mr Gallop’s) side of the southern hedge. 2. By itself the evidence for the hedge and ditch presumption cannot explain the complete hedge line. 3. The case should be remitted to the county court for a new trial on three main grounds. a) the 1915 Deed and Plan were disregarded; b) there

Land Law

are inconsistencies with the hedge and ditch presumption which was not addressed in the first instance; and c) whichever party won on the true line of the boundary the other party had a case based on adverse possession. So where does this all lead? Firstly for the experts there were a number of site visits by both experts alone and one joint visit. It seems that both agreed (more or less) on a position on the ground determined from a measurement on deed plan. Secondly, the pleadings of the parties were not particularly clear and over a period of time, from initial dispute in 2005 to the issue of proceedings in 2007 and the first judgment in 2009, the stance of each party altered to include new alternative claims and counterclaims. In my experience the matter of an old hedge adjacent to, or previously part of, a field may lead to the hedge and ditch presumption (see Alan Wibberley Building Ltd v Insley [1999] 1 WLR 894) and the expert should be aware that, whether or not it is a pleaded case at the time of his or her instruction, it may be useful to consider all the ground and map evidence for that eventuality. Similarly, adverse possession has a number of strands, one of which is occupation, and again the surveyor is in a good position to note evidence of occupation and the nature of the boundaries of that occupation. Finally, Land Registration (LR) Title Plans are created on Ordnance Survey (OS) topographical plans and the general boundary rule applies and the Land Registration Act 2002 at section 60 states: ‘(1) The boundary of a registered estate as shown for the purposes of the register is a general boundary, unless shown as determined under this section. (2) A general boundary does not determine the exact line of the boundary.’ In other words the true boundary, which is a line of no thickness, may be on or abut or near to the physical feature which has been edged red on the LR title plan. In fact circumstances may be such that there is no physical feature on the ground and LR shows the line of the boundary as a dashed line and ‘subject to survey’. This in itself may cause problems and it is instructive to see Derbyshire County Council v Fallon & Fallon [2007] EWHC 1326 (Ch); [2007] 25 EG 182 (CS) where, amongst other matters, the original deeds and detailed land survey prior to sale were of great importance. In conclusion, it appears that the expert has a part to play in gathering both factual evidence and also in relating documentary evidence to what exists on the ground at the time of creation of that document as well as what currently exists. q

Legal expertise at your service

ounded in 1868 by Royal Charter, RICS (Royal Institute of Chartered Surveyors) is an independent professional body committed to setting and upholding the highest standards of excellence and integrity. RICS expertise extends to providing help with legal issues and the organisation offers a variety of dispute resolution services within the property and construction sectors. These include the RICS Dispute Resolution Service (DRS) – the world’s largest provider of alternative dispute resolution services to the property and construction industries, appointing around 10,000 dispute resolvers per year. DRS provides access to a panel of highly experienced expert witnesses in all areas of property and construction. Where two parties cannot agree on the appointment of a single joint expert, an application can be made to the President of RICS to make an impartial nomination. The single joint expert is selected from

the RICS Dispute Resolution Panel. RICS single joint experts are experienced in all areas of property and construction disputes, including: building surveying; commercial property; compulsory land purchase orders; construction disputes; dilapidations; planning and development; retail property and valuation. RICS panel members have many years of experience acting as expert witnesses, providing evidence in UK judicial or tribunal proceedings. The RICS Dispute Resolution Professional Group is the home within RICS for members involved in all areas of dispute resolution including: conflict avoidance; arbitration; adjudication; independent expert determination; mediation and expert witness and advocacy services. The RICS Dispute Resolution Professional Group has around 20,000 members and liaises closely with RICS Dispute Resolution Service but the professional group's role is distinct from that of the DRS.

The RICS Neighbour Disputes Service is an innovative form of alternative dispute resolution promoting neighbour harmony. Although the Neighbour Disputes Service lends itself to boundary disputes – from ownership of land to the relocation of boundary markings (such as a fence) – it is well equipped to resolve other property disputes or emotive issues that arise. This service offers a significantly cheaper and quicker alternative to the courts by providing a referral service to surveyors, solicitors, the public and the wider legal profession to resolve a neighbour or boundary dispute. The Neighbour Disputes Service consists of three stages, each designed to resolve the dispute with finality. Application can be made to RICS by one or both parties, after which the DRS will appoint an independent professional with relevant knowledge and experience of the dispute in question. • For more information: Tel: 020 7334 3806. Email: drs@rics.org q

What’s magic about mediation?

t often seems that the world of litigation lawyers divides into two camps: those who have never mediated, and those who are passionate advocates for mediation. The third group – lawyers who have tried it and say “never again” – doesn’t exist. Why? Well, it seems that the blandishments of Lord Woolf et al, and the costs penalties for failure to mediate, have still not had the desired effect on some; yet when mediation becomes inevitable, those lawyers become converts overnight.

There must be something magic about the mediation process. What is it? Before I launch into my list of reasons, two things. First, I must declare an interest. I am an experienced mediator – 73 chaired to date, vast range of topics, 80% success rate – so you can expect me to be passionate about mediation. But second, I don’t even depend on it for much of my income. My main profession is expert accountant in litigation, which means I have spent a great deal of time with lawyers, and with nervous parties facing a process they don’t understand. There has to be a better way. There is, and I am an advocate for mediation mainly because I have seen how it has transformed people’s lives for the better.

What then is the magic? Let us take as read all the usual reasons: speed, relatively modest cost, privacy, the parties are in charge, no precedents set, and so on. Instead, let us concentrate on what happens at mediation, and on how and why it works in practice. The two most important things to remember are these: that the mediator is a highly trained individual who knows how to listen to people and establish their true needs by picking up clues when the parties are asked to tell their story in private; and that the mediator, as the day progresses, is the only one who knows the whole story. He (or she) respects that knowledge and uses it very carefully. He never breaks a confidence, and shares information only with express permission. Nor must the mediator be a messenger-boy; information with permission is shared only when it is considered to have the most impact in proceeding to a settlement. Some of the many techniques used come from Influence – the Psychology of Persuasion by Robert Cialdini. Very briefly, they work like this: Authority: The parties and their advisers must have confidence in the mediator and the mediation process. I always dress smartly to look the part, and insist on having an opening ceremony where I recite my experience and explain how successful mediation can be. Commitment and Consistency: The parties are asked to commit to the process by saying out loud: “I have authority to settle this dispute”, and the mediator must be consistent in managing the day. For example, I say in terms that I do not know either party, and that my sole intention is to help them to solve their problems; I never break confidences; I make a point of destroying all my notes at the end as I promised to do at the beginning, and so on. Liking: As in life, so in mediation, it is much easier to work with people if you like them. It’s easy for me because I genuinely like people, but the mediator must be a chameleon who gets on with everyone, and the first private meeting is always important in establishing rapport. Reciprocation: If one party gives something in negotiation, it is much harder for the other not to. In a particularly nasty probate mediation, brother and sister hated each other with a passion, but I was able to learn that brother desperately wanted the family grandfather clock, and sister wasn’t bothered. After that, it was easy to draw the parties together and agree far more important matters than who took the clock. Social Proof: Parties will agree things if they think it is the right thing to do in their family or community. So, for example, Asian parties sometimes nip out to call an elder in the community who hasn’t heard the discussions.

by CHRIS MAKIN

More often, it becomes clear that a party is concerned about what their wife or husband will say about the settlement they intend to make. One must respect such important considerations. Scarcity: ‘Buy One Get One Free – offer ends tomorrow.’ Irresistible? With litigation consider the worry, expense, loss of management time, uncertainty of outcome, and the fact that some of the winner’s costs will be ‘taxed off’ even if they win on all heads of claim. It is far better to reach a settlement you can live with and get on with your life. I tell the parties litigation is like dancing with a gorilla: the dance stops only when the gorilla decides to let go. But today, in mediation, you are in charge, and you can agree to anything the other side will live with. If that fails, the gorilla of litigation will dance on, and you will have nothing to look forward to but worry and expense. So why not settle today, before the offer expires? I recall a three-way property development I did some months ago. One party had given up quite a bit to reach a settlement, but on my feedback form had written: “All disputes should, if possible, be settled this way – Great Mediator!” ADR does not stand for ‘Alarming Drop in Revenue’. If you have mediated, thank you and congratulations; you are one of the converted. If you haven’t, do give it a try. You won’t regret it! q Chris Makin has practised as a forensic accountant and expert witness for 21 years. He is one of only 23 chartered accountants so far to become accredited as an expert witness and forensic accountant - see www.icaew.com/forensicaccreditation/register. He also performs expert determinations. For his mediation website, see www.chrismakin.co.uk.

Accuracy:

a measure of quality by NIGEL ATKINSON of Morton Atkinson Associates Nigel Atkinson explains that an understanding of the quality of the evidence would lead to a more realistic approach to disputes, since in many cases it is not good enough to resolve them.

ccuracy is the measure of the quality of evidence. In the case of boundary disputes, this evidence will consist largely of plans attached to old deeds and the Land Registry title plans whose accuracy can be quantified. The Ordnance Survey has done this by rigorous testing of its mapping over a long period, giving figures for absolute and relative accuracy. Absolute accuracy is the expected difference between the position of a point and its true National Grid position. Relative accuracy is more useful for boundary disputes as it quantifies the expected difference between the dimension between two points on the mapping and the true distance measured on the ground. As a boundary surveyor I am interested in the relationship between the corners of a plot rather than their position relative to anywhere else in the country (one reason why I don't use GPS which provides absolute coordinates). In general â&#x20AC;&#x2DC;acceptableâ&#x20AC;&#x2122; errors of plus or minus 1.0m (3ft) can be expected for 1:1250 mapping and 2.3m (about 8ft) for 1:2500, these being the usual scales used by the Land Registry, although within small areas the figures may be better than this. A similar process can be carried out for any map or plan used as evidence. Such testing also gives the scale of the plan which may have been reduced or enlarged during copying. It is good practice never to trust the quoted scale but to calculate the actual scale of the copy being used. Some more sophisticated methods of testing can even identify (and to some extent correct) distortions in the plan. It might be useful at this stage to note the difference between precision and accuracy. Precision is the level of detail of a measurement, whether it be to millimetres, centimetres, metres and so on. Accuracy is the quality of the measurement. Enlarging a plan may increase the precision of measurements taken from the plan, but the underlying accuracy does not change. For instance modern digital versions of the Ordnance

Survey mapping allow the computer to calculate dimensions to fractions of a millimetre, but if it was originally surveyed to a scale of 1:2500 the accuracy is unchanged at plus or minus a couple of metres. This is a fact overlooked by many professionals, including (I am afraid) some land surveyors! Why is accuracy important? Solicitors tend to deal in words, not numbers, and complex analysis of numbers and percentage probabilities can leave them cold. Clients tend to see a thin line on the map and expect it to be translated into a thin line on the ground. Of course it's not as simple as that. Understanding the accuracy/quality of the evidence is vital for several reasons. Firstly, it determines the weight to be given to a piece of evidence, subject to its legal significance. In boundary disputes the evidence is usually conflicting, and one piece has to weighed against another. A beautifully drawn plan may actually be a diagram rather than an accurate record of the boundaries and should be discounted accordingly. Some apparently poorly drawn plans are in fact a very good record of the boundaries deserving of greater weight. Secondly, an understanding of accuracy may lead to a more realistic assessment of the problem. It is unlikely that a dispute over a few inches in a back garden will be resolved by Ordnance Survey maps with accuracies of plus or minus 8ft. Of course there are other sources of evidence such as photographs, usually of limited accuracy and difficult to measure from, or features on the ground such as old fence posts or hedge remains. If this extrinsic evidence is lacking it is important for all parties to understand the limitations of the map evidence. If the maps are not good enough to provide a definitive answer it would be better to resolve the dispute immediately by agreement rather than spend a fortune taking it to Court. In the absence of definitive evidence the judge's decision will have to be arbitrary, for instance to split the difference down the middle. One way to look at it is to consider the thin line on the plan as being a fuzzy zone on the ground, which for 1:2500 mapping could be up to about 16ft wide. Where the true boundary lies within this zone is a matter of opinion. The conclusion is that the position of the boundary can only be decided within the tolerance dictated by the accuracy (or quality) of the evidence. The better the evidence, the better the solution. Disagreements within this tolerance cannot be resolved from the evidence alone. If clients (and often their solicitors) could understand this many disputes would be sorted out at an early stage without proceeding at huge cost to the lottery of a trial. Lower accuracy means greater doubt; greater doubt means greater scope for argument over differing opinions; and the cost and length of litigation is directly proportional to the number of opinions. The only winners are the lawyers and experts. q â&#x20AC;˘ Nigel Atkinson is a Fellow of the Royal Institution of Chartered Surveyors (RICS) and is a corresponding member of the RICS Boundaries and Party Walls Working Group (although the opinions expressed are his alone); a member of the RICS Expert Witness Registration Scheme and the Neighbour Disputes Panel; and a Founder Member of the Expert Witness Institute. He has published and lectured on the subject of map accuracy. His practice, Morton Atkinson Associates, specialises in the survey aspects of boundary disputes and rights of way cases.

Diabetes, DVLA, driving and low blood sugar by DR MARK SAVAGE of Manchester Diabetes Specialists

he DVLA currently issues 3-years normal driving licences to diabetes patients upon completion of a questionnaire and occasionally requests that a doctor also completes a form, although the whole process is presently being reviewed and may change in the future. Very few diabetes patients have Class 2 licences (PSV/HGV), although this may change too as an EU Directive not to have an automatic ban on diabetes patients having such licences is being considered by the DVLA.

Low blood sugar (hypoglycaemia or a ‘hypo’) occurs primarily in diabetes treated with insulin – although other combinations of medications can also cause hypoglycaemia in particular the sulfonylurea drugs and especially if used with the newer agents that are injected, but are not insulin, the GLPagonists liraglutide and exenatide. Hypoglycaemia occurs when there is an imbalance between the amount of sugary foods or carbohydrate eaten, the insulin injected (or dose of tablet) and exercise. For example, if a person with diabetes eats a standard meal and takes the normal insulin dose but then does extra manual labour, such as gardening, the sugar can fall. Likewise, if taking a mix of insulin that requires meals to be planned in advance and then a meal is missed or delayed, hypoglycaemia can again occur. Symptoms manifest themselves firstly as a subtle change in behaviour, often only noticeable by others. As the sugar falls further symptoms usually occur i.e. shaking, nervousness, sweating – this is what patients notice as a ‘hypo’ in the classical sense. At this point sugary drinks with a supplementary biscuit usually stop the problem worsening. These symptoms are called both ‘warning symptoms’ (of a severe hypo, see below) and also a ‘mild hypo’ per se. Severe hypoglycaemia occurs when the symptoms are ignored, misinterpreted or disappear due to long-standing diabetes and patients miss out the mild or warning hypo proceeding directly to confusion, obviously altered behaviour and are unable to perform complex tasks such as driving. The DVLA issue clear advice to diabetic patients at http://www.dft.gov.uk/ dvla/medical/ataglance.aspx and in brief require patients to carry fast acting carbohydrate in their vehicles (e.g. Lucozade® drink) and to pull over when they notice a hypo. They are advised to remove the keys from the ignition, move from the driver’s seat and not to drive for 45 minutes. Accidents caused by hypoglycaemic patients do occur due to the warnings (or a mild hypo) being ignored or not perceived. Issues to be considered are: • Does the patient normally get warnings of hypos? If not, and this • is documented in medial notes, how did they get a licence, did they • complete the form for the DVLA inaccurately? • Have they been educated properly by their doctors? • What insulin (or tablet) regimen are they on? • Have they driven when they should not have? e.g. a builder missing his lunch whilst taking fix-mix insulin in the morning (which is designed to cover the lunch without taking another injection) and then driving a van into a line of school children whilst hypo might be charged with driving under the influence of a drug (insulin) as well as other serious motoring offences. q

Is conviction based solely on DNA evidence possible? by DR ANDREI SEMIKHODSKII of Medical Genomics Ltd

n the process of establishing the guilt of the accused, the jury evaluates all evidence adduced at the trial and, in doing so, assigns appropriate weights to each evidential fact. Some evidence may have much probative value and, in the minds of the jurors, give much reliable information regarding the probability of a fact at issue and, ultimately, the guilt or innocence of the accused, while other evidence could be less informative. DNA evidence is one of many types of evidence that is adduced at a trial and how much weight a jury assigns to it depends on how strong this evidence is as well as how convincing were the arguments of the defence in challenging the evidence. Whether or not the members of the jury decide to disregard other evidence in favour of DNA evidence or consider other types of evidence less informative is up to them. But, in any case, when DNA evidence is not the only type of evidence adduced at the trial, the jury, in making the decision as to the guilt or innocence of the accused, analyses DNA evidence in conjunction with all other types of evidence and gives the verdict based on all evidence available. Therefore, the question whether or not DNA evidence on its own is enough to convict an accused should be rephrased as ‘in the absence of any other evidence, is DNA evidence enough to make a decision as to the guilt of the accused’. This is one of the most talked-about points regarding DNA evidence and there exist two contrasting opinions on the matter. The adherents

of the ‘yes’ camp accept that conviction on DNA evidence alone is justified while the adherents of the ‘no’ camp believe that it is wrong to convict based solely on DNA evidence as the probability of miscarriage of justice in such a case is unacceptably high. The judgment in the case of R v Adams (Denis) [1996] 2 Cr. App. R. 467 makes a special reference to the fact that ‘There is no principle of law that DNA evidence is in itself incapable of establishing guilt’ and ‘. . . There is . . . nothing inherent in the nature of DNA evidence which makes it inadmissible in itself or which justifies a special, unique rule, that evidence falling into such a category cannot found a conviction in the absence of other evidence’. This point of view was reiterated by the judgment in R v Hanraty [2002] 2 Cr. App. R. 30 where the Court of Appeal accepted that standing alone DNA was certain proof of the defendant’s guilt. The alternative opinion was expressed in the ruling of R v Watters [2000] WL 1791491 ‘There is no rule that enables the court to say, well, when a figure [DNA match probability] reaches a certain level then it is safe to leave it to the jury, but below that it is not.’ The issue whether or not DNA evidence alone is enough to convict the accused of the crime is an issue both of legal theory and practice. Instead of asking the question whether DNA evidence on its own can prove the guilt of the suspect, one has to ask whether DNA evidence on its own is enough to prove each element of actus reus and mens rea of the crime in question as well as their coincidence in time. DNA evidence can place the accused within an exceedingly small cohort of potential perpetrators. Whether on its own this proves both the actus reus and mens rea is questionable as a single type of circumstantial evidence cannot at the same time prove both. If either the actus reus or mens rea is absent it will not be possible to prove that the accused has committed the crime in question no matter how evil it is. For example, when semen is found on a vaginal swab from a rape victim and DNA evidence strongly supports that the source of DNA in the semen is the accused, this does not automatically indicate that the accused raped the victim, as absence of consent has to be proved by other evidence. Even in an offence of rape of a child (the offence where there is no opportunity for a plea of consent) the prosecution has to prove that penetration was intentional and this must be done by adducing other evidence or testimony. So, if DNA evidence is the only evidence in the trial and no circumstantial or other evidence is available, then from the theoretical perspective the DNA evidence seems incapable of proving both necessary components of a crime. When DNA evidence proves the act, something else must prove the intent. Besides considerations with regard to the actus reus or mens rea of a particular crime, whether or not DNA evidence is enough to prove the guilt of the accused is intricately linked to who bears the legal burden of proof, to the standard of proof required to secure such a conviction, which in criminal proceedings is ‘beyond reasonable doubt’ and also, to the size of the population within which uniqueness of the DNA profile is claimed. It follows from this that it is also related to the problem of the uniqueness of a DNA profile itself, the probability of finding at least one DNA profile matching the accused in the relevant population, the probability of a false match and the rules for choosing which relevant population the perpetrator of the crime comes from. Because of its high cogency, DNA evidence is powerful enough to put a suspect within a small group of individuals who can be linked to the crime scene. When the probability of a random match is low, there may be only three or four people in the country besides the accused who could have committed the crime based on DNA evidence. In cases when a full match between DNA profiles from the crime scene and the

suspect is obtained, the probability is usually reported as less than 1 in 1 billion meaning that the accused is put within an exceedingly small group of potential perpetrators. Whether this fact on its own is enough to prove the guilt beyond reasonable doubt is disputable. The concept of random match probability is based on the assumption that the â&#x20AC;&#x2DC;random manâ&#x20AC;&#x2122; is a person who is not related to the accused. When the probability of a random match is less then 1 in 1 billion, for anyone who is related to the accused, the value will be significantly higher. For example, the probability of a random full SGM Plus profile match for brothers will be only 1 in 10,000 and it is not the accused but his brother who could be the real perpetrator of the crime. When the accused has an identical twin, DNA analysis is powerless in discriminating between them. The prosecution may not have information about involvement of a relative of the accused in the crime but, by the same token, it may not have any information about involvement of the accused with the single exception that his DNA profile was found to match that from the crime scene sample. If the match originated from speculative searching of the NDNAD, the fact that the accused was a suspect or a perpetrator in an unrelated crime committed sometime in the past makes him instantly the prime suspect in the crime he is tried for. At the same time when the match probability is extremely low, the possibility of a false positive match is excluded, the relevant population is reasonably small, there is no evidence whatsoever that a relative of the accused could be the real perpetrator of the crime, and that the real perpetrator of the crime was a UK resident at the time the crime was committed, then the DNA profile of the accused could be considered as unique by the jury who may be entitled to infer that the accused is guilty basing their decision on DNA evidence even in the absence of any other evidence. It is difficult to argue that there is something inherent in the nature of DNA evidence that makes it in itself incapable of establishing guilt. However, this decision is conditional on the supposition that all the above mentioned assumptions are valid. Yet they are usually among the most difficult ones to prove. The definition of the relevant population is often tentative and is related to the population resident within a certain area close to the scene of crime. The perpetrator may not necessarily be a local person but may live several hundred miles away. There may be relatives of the accused about whom neither he nor his family have any information and one of them could be the real perpetrator of the crime. The fact that the offender was not a visitor to the UK from another country could also be hard to establish. This means that the debate continues as to whether or not it is possible to convict someone on DNA evidence alone. q

Male Breast Cancer

by TERENCE J DUFFY MA FRCS, Consultant Breast and General Surgeon

reast cancer in men is an uncommon disease accounting for less than 1% of all breast cancer cases, although a recent report has shown a scenario of rising incidence in the United Kingdom. At diagnosis the disease is frequently more advanced than in women. There may be several reasons for this including decreased vigilance and closer proximity of the tumour to the chest wall muscles in men. The overall poorer prognosis in men with breast cancer may lead to litigation on the basis of perceived delay in diagnosis or inadequate treatment. The tumour typically presents as a painless lump in the breast. Skin ulceration is more common in men than in women due to direct invasion of skin by the cancer and may present as locally advanced disease. The only other condition to be considered in the differential diagnosis is that of gynaecomastia, a benign enlargement of the vestigial breast tissue in men. Only 3-7% of men presenting with a breast mass will subsequently be shown to have breast cancer. Nonetheless, the diagnosis must be considered in all cases presenting with a breast mass after puberty, particularly in the older patient, even when factors

known to predispose to the development of gynaecomastia (such as high alcohol intake, steroid and other medication usage) are present. Breast imaging with mammography will usually differentiate between the two, but fine needle aspiration cytology is unreliable in the male breast and needle core biopsy must be carried out for confident diagnosis. The percentage of newly diagnosed patients with concurrent metastatic disease at presentation is up to 3 times greater in men (30%) than in women and evaluation for metastases with chest x-ray, bone scan and liver function tests should be carried out routinely. A number of aetiological/risk factors have been identified of which the most important are genetic factors. A family history containing breast cancer patients is a definite risk factor for breast cancer in men. Inheritance of the BRCA1and BRCA2 genes follow an autosomal dominant pattern, that is they are passed on equally in men and women and are not carried on the sex chromosomes. It is important to bear this in mind as a common misconception exists that breast cancer can only be transmitted in the female line. Male breast cancer is most commonly associated with BRCA2 in genetically linked families and where this gene has been detected in a family member it is important that male relatives be appraised of their increased risk. Other, environmental factors which may confer an increased risk include gynaecomastia (particularly occurring after puberty or in geriatric patients), endogenous oestrogen administration and ionising radiation. However, the magnitude of their contribution to the development of male breast cancer is not well documented. Obesity is positively related to risk and physical activity inversely related. Alcohol consumption is not related to risk. Surgical resection, in the form of modified radical mastectomy, is the most important and effective treatment option for breast cancer in men. The proximity of the male breast tissue to the chest wall muscles, notably pectoralis major, results in a greater proportion of cases showing invasion of the muscle by the cancer. Consequently, surgical excision of some or all of the muscle may be needed. In a manual labourer this may have a significant effect on the ability to undertake work involving lifting/carrying and this will need to be taken into account when assessing quantum where litigation has been undertaken. Radiotherapy to the chest wall is used more frequently than in women undergoing mastectomy as there are likely to be more positive or close deep surgical margins in men and this must also be considered in the estimation of quantum. As with women, the male patient should also undergo sentinel lymph node biopsy unless involvement has been demonstrated preoperatively. A higher rate of axillary lymph node positivity carries the implication of a greater likelihood of adjuvant cytotoxic chemotherapy use in men. The oestrogen receptor status of breast cancers in men is 85% compared with that in women of 60% and Tamoxifen use will result in a higher proportion experiencing the side-effects of this medication. Stage for stage survival is equivalent for men and women with breast cancer, although more men will die of non-cancer causes in the same time period. Optimal therapies are no different from those in women. While there have been no studies investigating the psychological impact of breast cancer in men and their families, depression and anxiety are frequently encountered in this group of patients. q

Not all breast lumps are cancer by Mr Marcus Ornstein MB ChB FRCS

ot all breast lumps are cancer: Isn’t that rather stating the obvious? Yes, of course, but often that diagnosis is certainly not obvious. Errors occur both ways and some reach their way to lawyers. Breast cancer is the commonest cancer in the western world, in men and women. Recent figures show that 1 in 8 women will develop breast cancer some time in their lives, 80% of whom will be over the age of 50. Cancer Research UK records that 47,700 women were diagnosed with breast cancer in the UK during 2008, that’s around 130 women a day, and another 500 or so men. It usually shows itself as a lump but there are other tell-tale signs such as a skin dimple, a blood-stained nipple discharge or a change in the texture and look of the skin. Breast pain is rarely a dangerous symptom, only some 1% or 2% of cases present as pain alone, without an associated lump. Breast cancer can occur in women in their 20’s but that is unusual. Its incidence rises with age and there is a steep curve starting in the mid to late 40’s. The problem facing the doctor is that breast lumpiness is very common and it is natural for a woman to be worried when she notices this. Lumpiness, or nodularity, usually occurs in younger women and

worsens before periods with, often, breast pain. To doctors this all sounds very benign but the occasional cancer still occurs. More difficult is the solitary lump although, again, the malignant ones usually feel quite different from benign lumps – but the risk of getting it wrong is now greater so all patients with lumps, as opposed to lumpiness, should be referred to hospital (another potential reason for litigation) for ‘triple assessment’. This means that as well as clinical evaluation there is imaging, either ultrasound or mammography or both, and a biopsy. The biopsy might only need to be a fine needle aspiration (FNA) which is exactly what it sounds like and removes just a drop or two of tissue for the cells alone, called cytology, to be examined under the microscope. A core biopsy is needed whenever the three parts of the triple assessment do not concur and some breast units prefer this to cytology for all lumps. It uses a larger needle, therefore with local anaesthetic, to take a core of tissue the diameter of a pencil lead. We also have MRI scanning and ultrasound scanning of the axilla, the armpit, to help our assessment. Throughout the UK any worrying results will be discussed at a multidisciplinary team (MDT) meeting and if the lump turns out to be cancer the patient is next seen together with a breast care nurse and management options are discussed. Gone are the days of mutilating surgery for everyone. Breast conserving surgery, so called ‘wide local excision’ (WLE) or ‘lumpectomy’, is now standard management and if the lump is too large to allow this without causing a major cosmetic defect chemotherapy, called neo-adjuvant chemotherapy, can be given to shrink it. There will be some cancers which still require a mastectomy but surgeons in many breast units in this country are now able to offer immediate or delayed reconstruction. The decision is not always straightforward and this is plastic surgery, two other potential sources of litigation. As well as tackling the breast lump, the lymph glands under the armpit need to be assessed and if the diagnosis has not been made on pre-operative ultrasound and FNA this is done by a sentinel node biopsy carried out at the time of the cancer excision. If the biopsy is positive all the axillary lymph glands need to be removed and staging investigations, a CT scan of the chest and abdomen and a bone scan, carried out to check for metastatic spread. After breast-conserving surgery radiotherapy has to be added to prevent local recurrence and some tumours also require chemotherapy. The benefits of radiotherapy are great and the side effects few but the pros and cons of chemotherapy are discussed with the patient before a definite decision is made. All patients are discussed again, after their surgery, at the MDT meeting when the full histopathology of the specimen will be presented. The bottom line is that we cure two thirds of all breast cancers in this country, including the advanced cases. This means that the smaller, early cancer cure rate is around the 90% mark. The patient travels a rocky road but the outlook is nothing like what it used to be. Even in the last ten years death rates for breast cancer have fallen by almost a fifth. We are diagnosing cancer earlier than we used to and we have more effective, less mutilating, treatments. q

Profiling...

Graham J. Cox

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

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

Maternal request caesarean section: psychology vs. ethics and protecting the balance by MR RAJESH VARMA MA(Cantab.) PhD MRCOG MBBS(Hons.), Consultant Obstetrician and Gynaecologist

he doctor’s duty of care appears to be in direct conflict with the patient’s autonomy when a decision for maternal request caesarean is made. This article suggests ways in which this conflict can be prevented or minimised whilst respecting this balance. There is growing concern about rising caesarean section rates in the UK and worldwide. This cannot be entirely explained by differences in populations and medical conditions affecting mother or fetus. The key determinants of the increase relate to differences in clinical decision making, caesarean section because of previous caesarean and caesarean section for maternal request (i.e. in the absence of medical or obstetric indications and at the request of the mother). However, these factors are continually changing in prevalence and often show interdependency in relation to their overall impact on the rate of caesarean delivery.

What is the burden of the problem? It is estimated that maternal preference for caesarean section occurs in around 15% of pregnancies. Maternal preference is higher in women with: previous caesarean delivery, previous instrumental (forceps or ventouse) delivery, previous perineal trauma, psychological morbidity (such as tocophobia), previous birth-related neonatal injury, previous negative birth experience, a complication in the current pregnancy, multiple pregnancy, IVF pregnancy, extremes (<20yr, >40yr) of maternal age and no previous birth experience. Around 6%–10% of pregnant women experience a fear of childbirth and/or fear of pain of childbirth which manifests as a post-traumatic stress-type syndrome termed tocophobia and the vast majority of these women undergo elective caesarean delivery. However, a small proportion of women requesting caesarean section for tocophobia do not suffer from a clinically significant fear of childbirth when assessed by a psychiatrist with expertise in perinatal mental health. Many of the factors listed earlier appear to be associated with tocophobia, however most notable appear to be previous operative

vaginal delivery and previous negative (‘traumatic’) birth experience (be it vaginal or caesarean delivery). At 3 years follow up following operative vaginal delivery, 50% of women indicated they would not have a further child and almost half of these reported fear of childbirth as the main reason for avoiding pregnancy. Furthermore, fear of childbirth during pregnancy is independently associated with an increased risk of labour dystocia and emergency caesarean section but not with fetal distress.

Ethical debate The immediate maternal risks of caesarean section include very low risk of minor morbidity (e.g. wound infection) and an extremely low risk of major morbidity (e.g. organ damage, venous thromboembolism, haemorrhage necessitating blood transfusion) and mortality. Long term risks include an increased risk of repeat caesarean, stillbirth, placenta praevia and uterine rupture in labour. Neonatal risks include minor respiratory morbidity in the short term, and very subtle long term health risks (e.g. asthma). Hence, given the medical oath primum non nocere, a caesarean section should only be performed if medical and obstetric conditions dictate this necessity. Historically, the main reasons given for justifying maternal preference for caesarean section included any combination of: respecting mother’s autonomy to decide, protecting the mother from the greater psychological harm of vaginal delivery, protecting the maternal pelvic floor and it is safer for the baby. Therefore, even if the woman is fully informed about the medical risks of caesarean, is it ethically justified to expose her (and her infant) to this physical risk in an attempt to protect her psychological health and respect her autonomy and right to choose? This question is difficult to answer in a generic way as every case needs to be considered on an individual basis.

Recommendations Given all the information discussed, recommendations on the prevention and management of women requesting caesarean section are depicted in the table below. q

Table: Recommendations in the management of women requesting caesarean section in the absence of an identifiable medical or obstetric reason

Elective caesarean section – ‘is she too posh to push?’ by C H NAYLOR MB, BCh, FRCOG Consultant Obstetrician and Gynaecologist

or a major surgical procedure, the mortality and morbidity rates for elective Caesarean sections at 39 weeks are relatively low. Those who argue against elective Caesarean section at 39 weeks emphasise that birth is a natural process which we allow at our peril. Peril for obstetricians can be litigation for neonatal encephalopathy – otherwise known as ‘Lack of oxygen to the brain causing brain damage’. We balance this against the pleasure, enjoyment and fulfilment of a natural birth for mother, her partner and their relatives. It is illegal in the United Kingdom for a birth to take place without a midwife in attendance. What can therefore go wrong? Every mother, her partner and family anticipate a live, healthy, undamaged baby. It has been shown that waiting for the baby to be born increases the stillbirth rate aggressively. Research has shown that fetal deaths per 1000 live births from 37-41 weeks of gestation progressively increased from 1.3 to 4.6 with each week of gestation. Elective Caesarean section at 39 weeks would prevent 2 fetal deaths per 1000 living fetuses. If these figures were translated to the United States there would be an annual saving of 6000 stillbirths. In the United Kingdom it is well recognised that post maturity pregnancies, those passing the 41st to the 42nd week, run a risk of stillbirth. It is therefore clinically accepted practice to induce labour and various techniques are employed. Most are successful but a small proportion fail and for these patients a Caesarean section is mandatory. However, the risks to the mother from an emergency Caesarean section in labour after a failed induction of labour is significantly greater than an elective Caesarean section at 39 weeks. No obstetrician or midwife during the antenatal period can be absolutely certain that their patient will have a normal straightforward

vaginal delivery. A very famous Scottish obstetrician said “you must regard every delivery as possibly abnormal until you prove to yourself that it is normal”.

What can go wrong to prejudice mother and baby? During uterine contractions there is a temporary cessation of the exchange of oxygen and carbon dioxide between mother and baby. The baby has a special way of dealing with this known as ‘Facultative anaerobic metabolism’. This means that the baby uses the glycogen stores in the heart and the liver. To measure the effect of lack of oxygen there are two accepted methods. The first method is to attach the patient to a machine which measures the fetal heart rate and prints this out on a cardiotocograph matching the heart rate with maternal contractions. In some cases the interpretation of the cardiotocograph is easy. On the other hand it can be difficult and I have met a barrister who boasted that his whole livelihood depends on the interpretation of fetal cardiotocographs. The second method is to take a sample of blood from the fetus’ scalp and measure the pH, as lack of oxygen is associated with acidity in the blood. The difficulty for the obstetrician and midwife is when to interfere and abandon the plans for a normal vaginal delivery and replace it with either an emergency Caesarean section or an operative vaginal delivery using forceps or vacuum extraction. Lack of oxygen causes severe changes to the fetal brain known as neonatal encephalopathy. The incidence at 40 weeks is 3.8 per 1000 term live births and these births have a fatality rate of 9.1%. It therefore follows, and supports the statistical evidence, that infants born to mothers by elective Caesarean section at 39 weeks have an 83% reduction in the occurrence of moderate or severe encephalopathy. The birth process may be traumatic for the baby and the most dramatic and frightening complication is known as ‘Shoulder Dystocia’. In this condition the head is delivered but the shoulders are stuck behind the pubic symphysis bone. Attempts at delivery often result in permanent injury to the nerve supply to the arm where the shoulder has been stuck or occasionally in death of the baby. Statistics show that the occurrence of nerve damage at the time of vaginal delivery varies from 0.047% to 0.6% but for Caesarean section is as low as 0.0042% to 0.095%. Fetal trauma is associated with the use of instruments such as forceps or vacuum extraction. The frequency of significant fetal injury is significantly greater with vaginal delivery where forceps or vacuum extraction have been employed compared to elective Caesarean section at 39 weeks. Both Caesarean section and vaginal delivery run the risk of extensive haemorrhage.Before performing an elective Caesarean section at 39 weeks I would like to know the site of the placenta. If the placenta was immediately underneath my incision then I might reconsider my decision to perform a Caesarean Section at 39 weeks because to reach the baby I might have to cut through the placenta with significant haemorrage. What has been discussed is relevant to first pregnancies. Patients may go on to have further elective Caesarean sections. Since elective Caesarean sections are becoming more common we are encountering more serious problems. One very dangerous condition is where the placenta buries itself into the wall of the uterus at the site of the previous Caesarean section incisions and cannot be safely removed without major haemorrhage or possibly a hysterectomy. Although Caesarean sections at 39 weeks may be protected for the development of neonatal hypoxic encephalopathy, so far it has not been shown to be protected from long term illnesses such as cerebral palsy, mental retardation and seizure disorders. Perhaps a one, or at the most two, child policy is a reasonable aim for a couple to achieve because of the risks of more than two Caesarean sections. q

The Law and Technology: The catch-22 continues! by DR M. R. GRAHAM MBChB, PhD, FRSM, MICR, MFSSoc

ompetitive athletes, bodybuilders, powerlifters and weightlifters self-prescribe and self-administer controlled drugs (CDs) such as synthetic testosterone esters and their derivatives, both orally and by intra-muscular injection, to increase their muscle mass and strength (Kicman, 2008; Graham et al., 2008a). Testosterone esters or androgenic-anabolic steroids (AAS) were considered drugs of abuse by the Home Office and in 1996 their classification was changed from prescription only medicines (POMs) to CDs. They have a significant impact on the stress responsive hypothalamicpituitary-adrenal (HPA) axis and an abnormal response to stress may mediate the development or maintenance of addictive conditions. Such drugs of abuse also have an impact on the endogenous opioid system and the dopaminergic system (neurochemicals in the brain, which encourage continued use). Each of these systems has also been implicated in the mediation of aggressive behaviour (Schlussman et al., 2002). General behaviour may often be adversely affected. There are specific case reports of individual aggressive reactions initiated or potentiated by alcohol. Pope et al., (1988; 1990) summarised the more extreme psychiatric effects of AAS abuse. Clark and Henderson (2003) have identified behavioural responses to AAS. The common psychological effects of increased confidence, unintended aggression, etc, are summarised by Daly et al., (2003); Hall et al., (2005) and Graham et al., (2008b). Pagonis et al., (2006) has shown that there are effects of AAS abuse, causing hostility in monozygotic twins. The study found high levels of aggression, hostility, anxiety and paranoid ideation in the twins who used AAS. The non-user twins showed no deviation from their initial status. The use of AAS induced several important psychiatric changes in monozygotic twins which were not present in the twin who did not use AAS. Therefore it cannot be disputed that the use of such drugs will influence behaviour and driving awareness. Under the present legislation AAS are controlled drugs ‘Class C’ (The Misuse of Drugs Act, 1971) and defined as ‘Schedule 4 drugs’ (The Misuse of Drugs Regulations, 2001). Such drugs are excepted from prohibition on possession by any person for administration to himself by virtue of Part II of Schedule 4 of the Misuse of Drugs Regulations 2001. An individual is not committing an offence by possessing such drugs for personal use, or ingesting them. The 1988 Road Traffic Act section 5(1)(b) and section 4(1) are simplistic and self explanatory with respect to driving while unfit through alcohol or drugs respectively. The Act states ‘a person who, when driving or attempting

to drive a motor vehicle on a road or a public place, is unfit to drive through drink or drugs is guilty of an offence’. However, the Act does not clarify the current testing procedures currently available. The courts have recently accepted hair analysis in family law, as proof of alcohol and recreational street drug abuse and are dispensing justice following identification of misuse, but are not using the same forensic hair analysis whilst an individual is in control of a road traffic vehicle. Urinalysis and blood analysis will identify acute ingestion, but hair analysis identifies chronic ingestion of controlled drugs. Police currently use breathalysers in order to successfully confirm whether a person is over the legal limit of alcohol. However, at present there is not a similar piece of equipment that can successfully confirm whether a person is under the influence of other controlled drugs. The police therefore have to rely on the suspected person carrying out certain exercises in order for them to evaluate whether they believe the person to be under the influence of controlled drugs whilst in charge of a vehicle. The different exercises that the police use to try and judge whether a person is under the influence are: • Ask that the suspect stands up, tilts his head backwards closing his eyes • and counts to 30. • Standing on one leg and changing between the right and left leg. • Asking the suspect to touch his nose a number of times and then • changing between his left and right hand. Unlike the fact that there is a limit on alcohol before it is deemed illegal to drive, there is no such limit with controlled drugs. If any trace of a drug is found in a suspect’s system, through urinalysis, he is deemed to be unfit to drive, this can also include some POMs that have adverse psychotropic side effects. It is here that the conflict arises! We are accepting forensic hair analysis for identification that chronic use of controlled drugs can affect the psyche in respect of child care, but not in respect of the control of road vehicles. The law should progress with the changes in technology. It is only a matter of time before the courts will have to accept forensic hair analysis in road traffic offences. Moreover, government funding should be available for research, to assess the chronic influence of such drugs on driving awareness. q REFERENCES 1. Clark AS, Henderson LP. Behavioural and physiological responses to anabolic-androgenic steroids. Neurosci Biobehav Rev. 2003 27: 413-436. 2. Daly RC, Su TP, Schmidt PJ, Pagliaro M, Pickar D, Rubinow DR. Neuroendocrine and behavioural effects of high-dose anabolic steroid administration in male normal volunteers. Psychoneuroendocrinology. 2003; 28: 317-331. 3. Graham MR, Davies B, Grace, FM, Kicman, A, Baker, JS. Anabolic steroid use: Patterns of use and Detection of doping. Sports Medicine. 2008a; 38(6): 505-525. 4. Graham, MR, Evans P, Davies, B, Baker, JS. AAS, Growth hormone and insulin abuse. Psychological and Neuroendocrine effects. A Review. Therapeutics and Clinical Risk Management. 2008b; 4(3):587-597. 5. Hall RCW, Hall RCW, Chapman MJ. Psychiatric Complications of Anabolic Steroid Abuse. Psychosomatics. 2005; 46:285-290. 6. Kicman AT. Pharmacology of anabolic steroids. Br J Pharmacol. 2008; 154:502-21. 7. Pagonis TA, Angelopoulos NV, Koukoulis GN, Hadjichristodoulou CS, Toli PN. Psychiatric and hostility factors related to use of anabolic steroids in monozygotic twins. Eur Psychiatry. 2006; 21: 563-569. 8. Pope HG, Jr, Katz DL. Affective and psychotic symptoms associated with anabolic steroid use. Am J Psychiatry. 1988; 145: 487-90. 9. Pope HG, Jr, Katz DL. Homicide and near-homicide by anabolic steroid users. J Clin Psychiatry. 1990; 51: 28-31. 10. Schlussman SD, Nyberg F, Kreek MJ. The effects of drug abuse on the stress responsive hypothalamic-pituitary-adrenal axis and the dopaminergic and endogenous opioid systems. Acta Psychiatr Scand Suppl. 2002: 121-124.

Substance misuse as a

consequence of childhood abuse by DR TOM CARNWATH MA FRCPsych FRCGP, Consultant Psychiatrist

ubstance misuse is frequently found among those who have been abused as children. The psychiatric pathways are diverse. Depression, personality disorder and post-traumatic stress disorder are possible responses to childhood abuse and all of these conditions are associated with addiction. Substance abuse is also found without any of these intervening syndromes. Abused children often come from families with a history of substance misuse, so in addition genetic factors and learned behaviour need to be considered. I often prepare reports on adults who have suffered sexual or other abuse as children in the care system, both for defence and claimants. Often these clients seek legal advice many decades after the original abuse, perhaps as a result of being contacted by police during an investigation into allegations concerning a particular care home. Police interviews may lead to reactivation of suppressed memories and consequent

psychiatric deterioration. Assessment is difficult in these cases, because typically children received into care will have already suffered inadequate or abusive parenting and will already be exhibiting disturbed behaviour such as petty crime, drug-taking or sexual promiscuity. Usually the alleged sexual abuse will not have been declared at the time, and often not until many decades afterwards. Childhood medical records will often be scant because neither the parents nor the care home will have taken them down frequently to see the GP, unless they suffer from some serious physical disability. It is crucial therefore to obtain Social Service records which will often be very extensive. Most useful will be reports of behaviour immediately before the alleged abuse and in the two or three years after. The question to answer is whether subsequent behaviour follows a trajectory one might have expected anyway, or whether there is some dislocation in behaviour, indicating a new adverse influence.

Particularly suggestive are indications of a breakdown in trust towards staff, for example a reduced level of engagement in activities, or the initiation of a pattern of absconding. If there is no subsequent improvement, and this then leads on to behavioural problems immediately after leaving care, a case can be made that there is a chain of causation, with the abuse preventing any possible ameliorative effect of the care process. Questioning about the incident may produce obvious distress, even after many decades. People may still suffer intrusive memories and nightmares and there may also be long-lasting effects on subsequent sexual relationships. Claimants have an obligation to attempt to mitigate their loss. It might be argued that by taking excessive drugs or alcohol they have failed in this obligation. However substance dependence is seen as a harm that provides a valid cause for claim. Even if claimants argue that their criminal activity springs from

a particular injury, they cannot legally claim compensation for this. They can however be compensated for cocaine dependence, even though possessing cocaine is itself a criminal act. Post-traumatic stress disorder with delayed onset is a controversial concept. In DSM-IV, it is acknowledged that typical symptoms can have their onset many years after the traumatic event. ICD-10 stresses that diagnosis of PTSD should for the most part only occur where symptoms occur within six months of a defined traumatic event, but does allow that there are some rare exceptions. Within the context of these

claims, delayed onset is not uncommon, especially in two circumstances. In one scenario the claimant has been abusing drugs or alcohol quite heavily since leaving care, but then for some reason stops doing so. They often then find that suppressed memories come flooding back and these may then trigger a further relapse into substance abuse. The second circumstance is when claimants become involved in a police investigation many years after the traumatic incident, as described above. In both cases it could be argued that what we see here is reignition of previous symptoms rather than delayed onset, but in

practice it may be difficult to acquire a clear description of the original reaction. Issues of witness reliability are very important in all these cases. Many clients suffer from Dissocial Personality Disorder and may also have spent time in prison. Clients will often know others who have received compensation and may want to jump on the bandwagon. Reliability must be addressed in terms of consistency and likelihood of the story. Beyond that the expert can warn the Court that the reliability of a particular witness may be suspect, but ultimately it is up to the Court to assess the evidence provided. q

Workplace drug testing: different matrices â&#x20AC;&#x201C; different objectives by JOHN WICKS & LOLITA TSANACLIS of Cansford Laboratories Limited

rug testing is used by employers to detect drug use by employees or job candidates. It can identify recent use of alcohol, prescription drugs and illicit drugs but it cannot detect impairment. So such testing should be used as a screening tool for potential health and safety and performance issues. The use of drug testing in the workplace requires a clear, written policy that is discussed and agreed with all employees before testing starts. Urine is the most commonly used sample for illicit drugs. It detects the use of a drug within the last few days and as such is evidence of recent use. However a positive test does not necessarily mean that the individual was impaired at the time of the test and abstention from use for 3 days will often produce a negative test result. Analysis of hair provides a much longer window of detection, typically 1 to 3 months. Hence the likelihood of a false negative test using hair is very much less than with a urine test. Conversely, a negative hair test is a substantially stronger indicator of a nondrug user than a negative urine test. Studies have shown that within the same industrial settings hair testing can detect 10 times more drug users than urine testing. Like urine testing, hair testing does not provide evidence of current impairment only of past use of a drug, however it can indicate frequency of use. Hair testing has no privacy issues as it is a noninvasive technique. The sample is taken under observation and is much less liable to be substituted than a urine sample. Oral fluid or saliva is also easy to collect. The most usual method is with a swab placed in the mouth that collects a sample of fluid for testing. Drugs remain in oral fluid for a similar time as in blood so the method is a good way of detecting actual current use and is more likely to reflect current impairment. It offers promise as a test in â&#x20AC;&#x2DC;post-accidentâ&#x20AC;&#x2122;, for cause and on duty situations. It remains essential in all cases to combine drug testing with a clinical appraisal of the actual behaviour of the individual before coming to any conclusion as to what action may be appropriate. q

Sudden Cardiac Death (SCD) / Sudden Arrhythmic Death (SAD) by DR MAURICE PYE MB BCh BSc Hons MD Hons FRCP London, Consultant Cardiologist

udden cardiac death (SCD) refers to the sudden cessation of cardiac activity with hemodynamic collapse, typically due to sustained ventricular tachycardia/ventricular fibrillation (VT/VF). These events mostly occur in patients with structural heart disease (that may not have been previously diagnosed), particularly coronary heart disease – either in setting of an acute myocardial infarction (heart attack) or due to VF related to an old scarred heart from previous heart attacks, cardiomyopathy or heart surgery. Death certificate data suggest that SCD accounts for approximately 15 percent of the total mortality in the United States and other industrialised countries. In absolute terms, the estimated number of sudden cardiac deaths in the United States in 1999 was approximately 450,000 . The magnitude of the influence of underlying cardiac disease on the risk of SCD is illustrated by the following observations: • The risk of SCD is increased six- to ten-fold in the presence of clinically recognized heart disease, and two- to four-fold in the presence of coronary heart disease (CHD) risk factors. • SCD is the mechanism of death in over 60 percent of patients with known heart disease. In addition, SCD is the initial clinical manifestation of CHD in approximately 15 percent. Etiology – SCD usually occurs in people with some form of underlying structural heart disease, most notably CHD.

Coronary heart disease – As much as 70 percent of SCD have been attributed to CHD. Among patients with CHD, SCD can occur both during an acute coronary syndrome (ACS) and in the setting of chronic, otherwise stable CHD (often such patients have had prior myocardial damage and scar that serves as a substrate for SCD). Other structural heart disease – Other forms of structural heart disease, both acquired and hereditary, account for approximately 10 percent of cases of out-of-hospital SCD. Examples of such disorders include the following: • Heart failure and cardiomyopathy • Left ventricular hypertrophy due to hypertension • Myocarditis • Hypertrophic cardiomyopathy • Arrhythmogenic right ventricular cardiomyopathy • Congenital coronary artery anomalies Absence of structural heart disease – approximately 10 to 12 percent of cases of SCD among subjects under age 45 occur in the absence of structural heart disease. • Brugada syndrome – (maybe noted in patients with abnormal resting ECG) • Idiopathic VF • Congenital or acquired long QT syndrome (maybe noted in patients with abnormal resting ECG) • Arrhythmogenic right ventricular cardiomyopathy (maybe noted in patients with abnormal resting ECG) • Familial polymorphic ventricular tachycardia, also called ‘catecholaminergic polymorphic VT.’ • Familial SCD of uncertain cause. • Wolff-Parkinson-White syndrome. Cardiomyopathy (maybe noted in patients with abnormal resting ECG) • Acute triggers – In addition to the presence of the above underlying disorders, superimposed triggers for SCD appear to play a major role in the pathogenesis of this disorder. These include ischemia, electrolyte disturbances (particularly hypokalemia and hypomagnesemia), the proarrhythmic effect of some antiarrhythmic drugs, autonomic nervous system activation, and psychosocial factors such as acute stress • In addition, SCD can result from commotio cordis in which VF is precipitated by direct trauma over precordium In Medico legal context the most common area of dispute is whether there was a breach of duty – ie missing a diagnosis of an underlying treatable cause of SCD. This most often arises if a patient had been referred (or not referred) for investigation of a syncopal event (blackout) – and an underlying serious cause was missed. There are certain red flag markers in general practice that should heighten need for more specialist urgent investigation (NICE guidelines suggest being seen within 2 weeks) – ie any history of coronary heart disease or structural heart disease ie cardiomyopathy, syncope on exertion, abnormal findings on exam ie heart murmur or abnormal resting 12 lead ecg. In patients with known structural heart disease were appropriate risk markers of sudden cardiac death identified and was Internal Cardioverter Defibrillator (ICD) therapy considered? SCD is obviously an extremely tragic event in every family no matter the age of the victim – emotions often run high – often there is no warning and there is no blame to be attached to anyone – the event could not have been predicted or forseen – it is in only in a few cases can there realistically be claimed to have been a breach of duty. q • For further information visit www.sadsuk.org

Ensuring reliable medical evidence

he consequences for an individual of being found guilty of a criminal offence are reflected in the higher burden of proof required for conviction – beyond reasonable doubt – compared with the civil standard – on the balance of probabilities. Medical evidence in assault cases can assume great importance. There might be injuries in places on the body that are usually associated with the individual adopting a defensive posture. The nature of any injuries can tell a story that might corroborate a defendant's account of the events that took place. With a cramped curriculum the teaching of forensic medicine is increasingly deferred to the postgraduate education of doctors. Consequently, some doctors do not clearly identify abrasions, lacerations or incised wounds in the medical records of patients. There is little clinical imperative to do so, since both injuries need similar treatment and the outcomes may not hold serious implications for the individual. It does matter in the forensic context when a person's good name or liberty can be at risk if the judges of fact at trial are misled by inaccurate medical evidence. It might be argued that there is a greater likelihood of flawed medical evidence being adduced today than 5 years ago. The reason for this is the outsourcing of forensic medicine to private companies. Those companies have placed healthcare professionals into custody suites where it could be claimed that their presence contributes to increased safety, so that those who are not fit for detention or not fit for interview can be appropriately managed. The Independent Police Complaints Commission reported that deaths in custody had fallen from 49 in 1998/1999 to 15 in 2008/2009. However, this welcome fall might reflect better training and, in particular, awareness of positional or restraint asphyxia, rather than intervention from those healthcare professionals. This necessary focus on safety may have led to the employment of doctors, nurses and other healthcare professionals whose induction might consist of a 7 day course, where the emphasis is on safety rather than recognition and appreciation of the significance of the basic types of injury that may be present on a victim or the accused. For the individual and for the state it is essential that medical evidence is reliable. Take the example of a person with an injury to the skin of the side of the neck. If that injury is described as an incised wound, it could be consistent with a cut from a sharp edge such as a knife or a piece of glass – the defendant may be deprived of liberty, family and employment prospects and the state obliged to feed and accommodate him in secure accommodation at great expense to the public purse. If, however, that incised wound, on review by a forensic physician, was found to be an abrasion, consistent with the zip of the hood of a sweat shirt being dragged across the skin, the judges of fact might take a very different view when applying the scales of justice. q

Understanding

Dual Diagnosis

by DR JEREMY STIRLING MB ChB, MRCPsych Consultant Addictions and General Psychiatrist

he term dual diagnosis in psychiatry refers to the co-existence of two psychiatric disorders. Most commonly it is used in those with an addiction problem and some other (or not infrequently several other) on-going mental disorders. The clinical significance of this coexistence is that: 1. It can make clinical assessment more complex and difficult 2. Clinical management generally has to be modified so that multiple disorders can be treated simultaneously 3. Clinical risks are elevated (in the case of dual diagnosis in the addiction population this may include an increased risk of relapse, disengagement from treatment, more severe symptoms, increased violence, homelessness and social exclusion) 4. Clinical outcomes are generally less favorable

setting is obvious e.g. a patient with a long standing schizophrenic illness developing opiate addiction and being charged with possession of classified drugs. However mental disorders that in my experience are often overlooked include Post Traumatic Stress Disorder, Adult Attention Deficit Hyperactivity Disorder (ADHD) and personality disorder. The take home message is that even if the addiction is the foremost presenting feature, the clinician should look beyond the obvious and exclude other psychiatric disorders. Likewise legal representatives should be mindful that dual diagnosis is common and may significantly impact on providing a context to the offending behavior and disposal options. q

In my experience as an addictions psychiatrist the presence of mental disorders in the addicted population is often missed and not infrequently mental symptoms are solely attributed to substance misuse when in fact other processes are at play. Substance misuse may be associated with other psychiatric symptoms: 1. Intoxication, as seen in someone hallucinating under the influence of hallucinogenic drugs 2. Withdrawal, as seen in delirious states coming off alcohol 3. A drug altering the symptoms of an underlying mental illness, as seen in a person presenting with a paranoid state and depression who has a depressive illness in the context of cannabis use 4. Individuals who self medicate with alcohol or street drugs as a way of coping with underlying mental disorders. For instance, this may present as someone who uses heroin to reduce the highly anxious states seen in Post Traumatic Stress Disorders. There are implications for the presence of dual diagnosis in the legal setting: • It can provide a context to offending behavior – e.g. a person with severe depressive illness and alcoholism who attempts suicide while intoxicated with alcohol by setting fire to their home. • In someone for whom a community disposal is being considered for a drug related offence, treatment of the addiction and mental disorder together may improve success with the disposal order – e.g. someone given a community service order who is dependent on diazepam for a severe anxiety disorder is more likely to be able to comply with the order if both the addiction and mental disorder are clinically managed together. Sometimes the presence of dual diagnosis within the addiction

Chronic Pain after an accident by DR ANDREW LOGAN BA Hons (Cantab) MBChB FRCA FFPMRCA Consultant Anaesthetist & Pain Specialist

he main subject of this article is ‘chronic’ pain after an accident and it is pertinent to introduce some definitions to clarify what this means. The International Association for the Study of Pain defined pain as: ‘An unpleasant sensory and emotional experience associated with actual or potential tissue damage, or described in terms of such damage’ Another definition of pain is: ‘Pain is what the person says it is, existing when and where the person says it does.’ Pain is subjective and can be present even if there is no tissue damage. There are big differences between acute pain and chronic pain and this is very important for assessment and treatment. Acute pain can be defined as pain that lasts less than 6 weeks, or pain that is directly related to tissue damage. This alerts us to correct or remove a cause. Examples of acute pain would include standing on a drawing pin or pain after a fractured femur. Chronic pain is defined as pain that persists beyond tissue healing, usually defined as greater than 3 months. There does not have to be an identifiable cause. It can be associated with psychological or social problems and may be caused, exacerbated or perpetuated by such problems. The assessment and treatment of chronic pain is complex. It is important to assess disability and impact on life. The presence of anxiety and/or depression should be considered as probable companions or perpetuators of chronic pain. There are two schools of thought when it comes to chronic pain management:

1. Interventional 2. Psychologically based pain management. Many of us occupy a position half way between the two and sometimes a patient will also need assessment from a psychologist, psychotherapist or a psychiatrist. What kinds of chronic pain can develop after an accident? 1. Chronic pain caused by the injuries sustained in the accident. 2. Exacerbation of a pre-existing pain problem. 3. Initiation of a chronic pain syndrome.

Assessment of the patient This must take into account the accident, the treatment so far, preexisting pain disorders, past medical history, social history including work history and family history. Questionnaires are useful in establishing the presence of anxiety and/or depression and quantifying disability and the impact the pain has on their life. There are many such questionnaires, some common ones in current practice include the Brief Pain Inventory, HAD (hospital anxiety and depression) and Roland Morris 24 (24 point disability scale). Examination concentrates on looking for signs of chronic pain syndromes, nerve damage or nerve pain, illness behaviour and disability or pain on pressure or movement. The interventionist will be on the look out for pain that may be treatable with interventions e.g. nerve root pain, lumbar or cervical facet joint pain from whiplash.

Treatment of the patient Medications – mild pain killers are used first and then it is usual to proceed to combinations of pain killers that work in different ways. These drugs include nerve pain agents, morphine like drugs, paracetamol, antiinflammatory drugs and local anaesthetic agents which may be delivered by mouth, injection or skin patch. Other modalities are tried if there is inadequate relief or side effects. Stimulation therapies – these non-invasive therapies, including TENS machines can provide relief in some patients and are worth a trial as they are virtually risk free and do not involve needles or skin penetration. Interventions – most specialists would prefer to start with procedures of very low risk such as trigger point injections although there are more complex procedures that can provide effective relief for specific conditions such as whiplash, nerve pain and complex regional pain syndrome. The majority of these procedures can be done under local anaesthesia using specialised needles guided by X ray. Multidisciplinary rehabilitation – there are some patients who do not improve with medical therapies. These patients can be helped by a multidisciplinary assessment and pain management program. These patients do not benefit from repeated referral to different consultants and multiple treatments are not effective. They often need a change in perspective from achieving pain relief to concentrating on other goals that may improve their quality of life. Such therapy is psychologically mediated and may not help if the patient still adopts the belief that there is a definitive treatment that will improve their pain. Patients who may be malingering or exaggerating their symptoms for personal gain are difficult to discover. A thorough analysis of their medical notes and work records is required as there is no simple test that will help. q

Post Traumatic Stress Disorder by DR ALEX YELLOWLEES B.Sc, M.B. Ch.B, M.R.C.Psych., M.Phil

he recent plight of the trapped Chilean miners raised public and professional awareness of the potential psychological effects of trauma. Traumatic events are so shocking to us because they undermine our sense that life makes sense and is safe. Therefore even apparently minor traumatic events can precipitate PTSD if the individual perceives the threat to their own life or the lives of others to be significant enough. Responses to trauma can occur when an individual experiences the stress and anxiety of severe pain, fear and threat of physical and psychological injury. Importantly, this can be either as the victim or the witness. Possible sources of trauma include events and experiences such as rape, road traffic accidents, assault, military conflicts, emotional, physical or sexual abuse, bullying, medical procedures or even receiving extremely bad news. It is worth remembering that there are 3 broad types of response to trauma and PTSD sits within this picture.

Acute Stress Reaction (first 2-3 days) Following a traumatic event an individual may experience an Acute Stress Reaction in which they initially, usually within minutes, experience disorientation, confusion and detachment followed by either dissociation into a trance like state or acute anxiety and panic. This can last for 2-3 days.

Acute Stress Disorder (first 4 weeks) In form this is like a brief period of PTSD and sufferers usually experience severe anxiety, dissociation, depression and amnesia and may relive the trauma through flashbacks or in nightmares. Symptoms can last for 2 days to 4 weeks and occur within the first 4 weeks of the trigger event.

Acute Post Traumatic Stress Disorder (after 4 weeks) PTSD is a form of severe anxiety disorder and occurs after the first 4 weeks following exposure to a traumatic event. PTSD is less common than acute stress reactions or disorder, occurring in about 8-10% of individuals exposed to traumatic events. Its features are: • Symptoms develop after 4 weeks and within 1 year following • exposure to a traumatic event as victim or witness • Symptoms last for more than 1 month • Symptoms involve a re-experiencing of aspects of the trauma through • flashbacks, nightmares etc. • Avoidance of any possible reminders of the trauma and a sense of • emotional numbing • Signs of increased arousal such as anxiety, anger, hypervigilance etc • Signs of significant impairment of social or occupational or normal • functioning Other sub forms of PTSD include Chronic PTSD (symptoms last longer than a year) and Delayed Onset PTSD (onset of symptoms commences after 1 year).

Treatment Treatment is available now for these responses to traumatic stress. They include general emotional support from family friends or professionals, counselling, specific psychological therapies such as cognitive behavioural therapy and specific medications such as betablockers, tranquillizers and antidepressants. EMDR, a form of rapid eye movement desensitisation and reprocessing treatment, is believed by many to assist in the re-programming and re-organization of traumatic memories.

Case Vignette 1 Sally was travelling by train across the Australian outback when it collided with a road truck and derailed. She remembers looking out of the window after the impact and seeing crumpled train and rail truck carriages and the bodies of the injured scattered around the debris. She suffered from both an acute stress disorder and then PTSD with symptoms of anxiety, nightmares, depression, hypervigilance and flashbacks. She was successfully treated with antidepressant medication, cognitive behaviour therapy and counselling.

Case Vignette 2 James was driving his young son to school when he witnessed two cars collide in front of him at a roundabout. At the time of impact one of the vehicles slewed across the road heading straight for James’ car. Luckily it stopped short. Neither James nor his son was injured, their car was untouched and they were able to continue their journey. Five weeks later James began to develop symptoms of generalised anxiety along with hypervigilance. He began to experience flashbacks and panic attacks when driving. He developed avoidant behaviour and started alternative road routes in order to avoid crossroads. He was treated with antidepressants, cognitive behaviour therapy, anxiety management and EMDR. He made a full recovery. Of note is the fact that James was only a witness to an accident, but he perceived there to be a severe threat to his safety and his son’s life at the time. q

Osteopathic Case Study by MR JON LEIGH, ND, DO, Registered Osteopath

The case of the ‘trapped nerve’

rs B, twenty four years old, had lifted her three month old son on to her right hip and felt an acute pain in her low back, followed by pain in her bottom, groin and upper thigh. She also noted that she suddenly had some difficulty in controlling her urinary flow, something she had never experienced before. Her general practitioner diagnosed ‘a trapped nerve’ but because she was still breast-feeding did not want to prescribe any medication and suggested that she go to bed for initially one week and ‘see how that helps’. With a two-year-old toddler, a husband and a dog to look after, this was not practical advice and she was advised to seek osteopathic help. On examination it was seen that she had strained her right sacroiliac joint which was producing muscle spasm and that was irritating her lumbar nerve roots causing the pain in her bottom, groin and thigh. It also explained the difficulty she was experiencing in bladder control as the nerve supply to the bladder and its sphincters all arise from the low back. She received osteopathic treatment to her lumbar spine and, as osteopathy correctly applied treats the whole spine and not just the affected area, treatment was also given to her thoracic and cervical spine. After two treatments she reported being free from pain in her low back, her inability to control her bladder had ceased but, to her surprise, the indigestion she had experienced for many years, which she had not mentioned at the initial consultation and for which she had always had to use antacid, had stopped. She could now eat almost anything with no heartburn or indigestion. Anatomically and osteopathically it is well known that the internal organs of the body are controlled by the spinal nerves and if the nerves are irritated at their nerve roots then the organs those nerves supply will have an altered function. This is a similar effect to having irritation on a lumbar nerve root, which produces pain with a sciatic distribution [sciatica] except that in this case the nerve root supplies an organ and is neither a motor nor sensory nerve. q

Avoid the by DR COLIN CROSBY MA(Oxon) FFSEM(UK) FFSEM(I) MB BS LRCP MRCP Medical Director, Department of Sport and Exercise Medicine, London

ssociation Football is a complex, multi-directional and multi-sprint contact sport with all the risk factors that these elements entail. In addition, there are also some injuries that are essentially unique to the game.

General Considerations Contact with other players, equipment (i.e. the posts, the ball) and the ground can all cause problems and while there is little that can be done to prevent an accidental clash of heads in a goalmouth melee, there are some simple guidelines to reduce the incidence of these sorts of injury. As with any sport, appropriate conditioning is essential. ‘The Beautiful Game’ can be played at any time, on any surface with any numbers of players and without any specialised equipment other than a ball. However, the tendency for the sedentary, unfit individual to have a ‘quick kick around with the kids’ without warmup, stretching, cool-down or any form of training whatsoever, is a recipe for disaster!

penalty of

football injuries Equipment

Protective equipment can be very useful in avoiding injury in soccer: • Shin guards should always be used, preferably with • ankle flaps since low cut boots leave the sensitive ankle bones exposed. •

Mouth guards, preferably individually fitted by a dentist, are very effective at reducing dental and peri-oral injuries from head clashes, elbows etc.

• •

A stud spanner is useful to permit stud changes for different surfaces

Environment The ground itself can be responsible for many injuries. If it is too hard, either from baking heat in the summer or being frozen solid in the winter, then injuries occur from direct body contact with it as well as from increased high-impact repetitive trauma to the foot, knee and back. Conversely, if the pitch is very soft and wet, excess slipping can lead to ankle and knee ligament damage and overuse tendonitis from constantly dragging boots out of the mud !

Good foot hygiene, particularly between the toes, to prevent tinea pedis (‘athlete’s foot’) is vital. Clothes and towels should not be shared with other players and flip-flops should be worn in the communal changing areas and when walking to and from showers. Petroleum jelly can be used to prevent blistering and comfortable, clean, well-fitting socks and boots protect the foot from damage. Don’t wait until your favourite pair of boots falls apart before replacing them. Always have a spare pair available which should already be ‘broken-in’ by training sessions so they can substituted at any time without the risk of skin damage, blisters and bruising. Finally, protruding rings should be removed (or, at least, taped over), long swinging neck chains avoided and chewing gum removed prior to playing! q

Hydration Adequate hydration is an important consideration especially when playing/training in hot and humid conditions. Players should always start a session properly hydrated rather than waiting until they feel thirsty before drinking. By this stage, the body will already be significantly dehydrated and this in turn leads to impaired performance and more injuries. Players should take on fluid at least half an hour before playing and maintain intake by repeatedly taking small volumes on board during the session. A large volume of water or isotonic sports drink (which is preferred) taken just before exercise is of limited use since the stomach ‘switches off’ during physical activity and very little fluid can then be absorbed. Remember, over two litres of fluid can be lost in 90 minutes vigorous exercise in hot/humid conditions.

Pre-season Assessment Early assessment of fitness, flexibility and body composition (muscle/fat/ fluid ratios) is very useful for the coach and players as it gives a baseline against which further development can be measured as well a ‘normal’ level for return to play after injury. Gait assessment and biomechanical analysis are also very helpful since the multi-directional nature of the game puts unequal strains on various parts of the locomotor system, particularly the ankles and knees. Many problems relating to in-turning ‘flat feet’ (overpronation), recurrent ankles sprains, achilles tendonitis, shin splints, knee pain due to poor tracking of the kneecap and groin strains can be treated or prevented by the use of appropriate insoles (orthotics) and specific remedial exercise programmes.

Foot Care Careful foot care is also very important in soccer, since in no other sport does the foot act as not only the main locomotor machinery for getting around the pitch but also as ‘the bat’ with which to hit the ball – and the target for the opposition ‘bats’ as well!

Whiplash injuries by MR A. J. M. BIRNIE, F.R.C.S.

hiplash and associated injuries are a range of mainly soft tissue injuries to the neck and back that affect a number of occupants of motor vehicles hit from the rear or from the side by other vehicles, as well as occasionally from other causes. Similar but milder injuries can be sustained in head-on crashes. At moderate and high speeds the bodywork of the target car tends to crumple, thereby diminishing the force of the impact on any of the passengers of the target car. At low speeds this crumpling tends not to occur with the result that the full force of the impact is transmitted to the passengers. Research tends to suggest that a whiplash injury can be produced by any collision above 10-15 k.p.h. and that the speed of movement of the head of the passengers can be anything up to five times that of the target car after the impact. The symptoms from the neck injuries frequently do not develop for several hours after the accident and may not have developed until after an early visit to a doctor or an Accident & Emergency Department. A significant majority of these neck injuries are mild and clear away within a week or two, leaving no lasting ill effect. However, a significant minority of victims have persisting symptoms which tend to settle somewhat over the next few months but which never clear up completely. Numerous doctors state that all whiplash injuries recover over one to two years. I have seen no evidence of this opinion in any published paper except for The Scientific Monograph of the Quebec Task Force on Whiplash-Associated Disorders (Spine Vol. 20, 8S, 1995) which makes such a claim but produces no evidence to back it up. It is now generally accepted that this claim cannot be substantiated. Whiplash victims who have had symptoms for a few months are going to have these symptoms indefinitely if they do not receive effective treatment. Such injuries to the upper cervical spine produce local pain and stiffness as well as headaches and sometimes pain radiating to the top of the shoulder. Such injuries to the lower cervical spine produce local pain and stiffness as well as pain and tenderness in the scalene and sterno-mastoid muscles on the side of the neck

and pain radiating onto the back of the shoulder. Frequently this is accompanied by pins and needles and numbness in the little and ring fingers, especially at night. A few papers show that a number of such victims have symptoms that worsen with time. I have seen 45 victims for a second medicolegal report. In 44 of these the tenderness was more widespread on the second occasion and in many of them the neck movements were more restricted. I have also seen several of these on at least one further occasion. Deterioration continued in all and seemed to do so more quickly in the young physically active claimants with very slow deterioration in pensioners. As the deterioration progresses over a few years, a clinical picture emerges that is virtually indistinguishable from fibromalgia. Back pain appears to develop in a significant minority of whiplash victims and presents usually a few days after the relevant accident. Back injuries are especially prone to occur in those involved in side on crashes as most car seats and restraint systems offer little protection against lateral acceleration forces. Unfortunately very little has been published about this problem but one published paper states: ‘Patients presenting with backache were never ultimately symptom free.’ In my experience of nearly 2,000 whiplash victims with well established symptoms, pain and tenderness in the dorsi-lumbar region tends to spread slowly in all directions; upwards to possibly join up with any pain in the neck and upper thorax, sideways as far as the lateral abdominal muscles producing the clinical picture labelled ‘nonorganic’ by Waddell et al and downwards to the pelvis from where it tends to spread down the back of the legs. I have recently seen MRI’s of whiplash victims in which the small muscles alongside the bases of the spinous processes of the affected regions have significantly deteriorated. The treatment of whiplash seems to be poor world-wide. Physiotherapists frequently claim, or are given, the credit for improvement in the first few months, but as spontaneous improvement is usually taking place then, it is difficult to evaluate the benefits of physiotherapy at that stage. There is no real evidence that standard physiotherapy is beneficial after the first few months. Standard osteopathic and chiropractic treatments tend to be beneficial but I have never seen a whiplash case cured by these techniques. I have been using trigger point therapy for over thirty years and I have been experimenting with various treatments for whiplash injuries for a good number of years. The following is my personal unpublished experience. Bowen technique, ice packs and cold sprays are beneficial initially. Low level laser treatment and frequent injections of local anaesthetic are helpful in the early stages but of limited scope in the later stages. Ultrasound therapy with the machine at moderately high power is very successful in the later stages but may need to be supplemented by spinal manipulation in any problem that has been present for over six months. If properly and frequently applied, this regime nearly always results in clearing of the symptoms. Treatment must continue without a break, otherwise the patient’s condition relapses. The longer the problem has been present the more difficult and time-consuming it is to treat. Therefore, early treatment given without a break is advisable. q