Expert Witness Magazine

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contents 7

IN THIS ISSUE 4 5 7 7 7 25

Opening Statement Expert testimony to come under scrutiny Workplace accident ruins kickboxer’s career Public are invited to nominate honorary silks Jail for would-be barrister The perfect venue in inspirational surroundings

FINANCIAL 15 15 16

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Obtaining data in conjunction with an expert witness instruction

PLANNING & CONSTRUCTION 11 11 13 13

First REIT to launch in September Resolving disputes is an expert activity RICS launches new residential policy Appeal Court rules in ‘house or flats’ dispute

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FURNITURE 20

DIGITAL FORENSICS 9

Law Society and Trading Standards issue property trust warning Law firms the target of online fraudsters Customers may be right, but the stakeholders are always left – The importance of effective stakeholder engagement Is your expert dual qualified?

FIRA’s experts have unrivalled knowledge

ARBORICULTURAL ISSUES 22 23 24

Institute of Chartered Foresters Directory of Consultants Tree disputes - getting to the root of the problem Cases involving trees require specialist arboricultural advice

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EXPERT CLASSIFIED 48 53

Expert witness classified listings Medico-legal classified listings

MEDICAL ISSUES 27 27 29 29 31 31 33 34 34 35 37 37 39 43 45 47 47

New tribunal will hear fitness-to-practise cases Whiplash debate heats up Former MP case brings plea law into spotlight Psychologist offers guidance on assessing child evidence A specialism born of warfare Profession welcomes Howe report, but victims remain unimpressed MPs call for regulation of plastic surgery ads Dentists dispute OFT findings Horse rider loses injury appeal How I work as a locum GP and avoid complaints Olympic drug testing lab gains accreditation Drug and alcohol conference set for Brighton Varicose Veins – the risks of minimally invasive techniques What’s in a name?

How to make sure a surgeon is operating on the right patient and in the right place Sports and leisure experts combine to promote safety Lords launches Olympic legacy sports medicine inquiry

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Suite 2, 61 Lower Hillgate, Stockport SK1 3AW Advertising enquiries: Tel: 0161 710 3880 Fax: 0161 710 3879 E-mail: ian@dmmonline.co.uk www.yourexpertwitness.co.uk Copyright Your Expert Witness. All rights reserved. No part of this publication may be copied, reproduced or transmitted in any form without prior permission of Your Expert Witness. Views expressed in this magazine are not necessarily those of the publisher.

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Opening Statement O Expert witnesses in the Family Court have come under the spotlight, with the quality of psychological experts being the subject of a debate in Westminster Hall. The secret nature of proceedings in the court were said to be the reason there had been no ‘quality control’. The report follows a study by academics at the University of Central Lancashire, which found inconsistencies.

The Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act has finally become law, after facing an almost unprecedented barrage of criticism, attempts at amendment and outright opposition in the House of Lords. The main critic from the opposition benches, Lord Bach, said parts of it are “not just bad but actually wicked” and an attack on the “disabled, poor and vulnerable, and those least able to defend themselves”. He was nearly as scathing on the Liberal Democrat peers who voiced concerns but didn’t vote against the Bill.

“They spoke with one voice then voted with a completely different voice,” he said.

The Law Society is urging City law firms to fund an initiative to help plug what it has called ‘the justice gap’. The initiative will also monitor and challenge the implementation of LASPO. Meanwhile, the next target of the lawyers’ wrath is the proposals to hold hearings in secret, excluding even the defence lawyers. A group of 50 specialist lawyers have written a response to the Justice and Security Bill, objecting particularly to the move to force judges to accede to the government’s application for a closed material procedure even when they feel it is not necessary. That, they say, is a contradiction of an assurance given by Mr Clarke in May. Lord Howe has published his report on the PiP implants scandal – more particularly, on the Department of Health and regulatory body’s handling of the affair. Unsurprisingly, his Lordship found they had all acted quite properly, a view not shared by the victims of the scandal and their legal representatives.

In the next issue of Your Expert Witness there will be a special report on dentists and maxillofacial surgery experts, as well as a look at the work of personal injury lawyers and their association, APIL.

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Expert testimony to come under scrutiny n The quality of expert witness reports in the family courts was put in the spotlight at a Westminster Hall debate on 24 May. Justice Minister Jonathan Djanogly said that the rules would be changed to ensure expert reports are only used when they are “necessary to determine a case”.

The Minister added: “Expert evidence will of course continue to be important in some cases to ensure a fair and complete process.

Where expert evidence is required, we are working to ensure that it is of high quality and delivered promptly.

“The main elements are raising the threshold for the court to permit an expert to be instructed; requiring expert witness evidence to be necessary, rather than reasonably required; and in family proceedings concerning children, there will be a list of factors that the court must explicitly consider in deciding whether to permit an expert to be instructed. Those factors include the impact on the child of a delay and undergoing an assessment, the cost, and whether the information could or should be provided by one of the parties, such as the local authority. We will also require the court to exercise better control over the questions put to the expert and require solicitors to undertake preparatory work earlier in the process to reduce delays in the experts beginning work.”

The debate came in the wake of groundbreaking research Justice Minister Jonathan Djanogly carried out by the University

of Central Lancashire (UCLan), which showed that the quality of psychological experts and their reports show some inconsistencies.

Evaluating Expert Witness Psychological Reports: Exploring Quality, was part funded by the Family Justice Council as part of their commitment to expert witness work and the continued review of standards across all expert witnesses.

The study examined 126 expert psychological reports submitted in family court proceedings from 180 court bundles across three courts in the UK. Court proceedings took place between 2009 and 2011 and covered both adult and child assessments. q

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Workplace accident ruins kickboxer’s career n The sporting career of a former England kickboxer has been ended after he was injured in an accident at work, a court has been told.

Zak Davis of Lincolnshire was buried up to his waist when a trench collapsed at the housing development he was working on in August last year. On 13 June the Nottinghamshire engineering company he worked for was fined for the incident.

Mr Davis was laying drain pipes in a trench being dug by an excavator. It had been raining heavily during the day and while he was in the trench the digger operator noticed the walls beginning to crack. He shouted a warning, but before Mr Davis could escape he was hit by the falling material – including a large lump of concrete – and was pinned down by his legs. He dislocated and fractured his hip socket and shattered his pelvis. He needed 10 hours of surgery and is still off work.

An investigation by the Health and Safety Executive found Phil Watson Civil Engineering Ltd had failed to assess the ground conditions and the effect that the rain would have, and failed to install measures to prevent a trench collapse. The company pleaded guilty to breaching Regulation 31(1) of the Construction (Design and Management) Regulations 2007. Lincoln magistrates fined the firm

£10,000 and ordered it to pay full costs of £2,141.

After the hearing HSE Inspector Tony Mitchell said: “Excavation work is a high risk activity, but the risks are foreseeable and preventable.

“The site had previously been a farm. It had been demolished and the rubble spread on site as top fill. The subsoil beneath Former England kickboxer it was predominantly compacted Zak Davis sandy soil, so the ground conditions were poor. However, this was not properly identified as high risk before work started. The rain made the soil structure more unstable and the trench collapsed because it was not sufficiently supported.

“This incident could have been prevented by the use of mechanical trench supports or by sloping the trench sides further. Instead, a man has been left with life-changing injuries.” q

Public are invited to nominate honorary silks

n Nominations are currently being invited by the Ministry of Justice of people for appointment as Queen’s Counsel honoris causa (honorary silk). The Ministry of Justice intends to recommend a number of people to Her Majesty for appointment next spring. The legal sector and the wider public are invited to make nominations.

To suggest someone for appointment, the nominator should give reasons for believing that the person nominated has made a major contribution to the law of England and Wales outside practice in the courts, including what the person has done, where and how that amounts to a major contribution beyond what might normally be expected for someone in that person's position.

Nomination forms are available from the Ministry of Justice website at www.justice.gov.uk and must be returned by 31 July. q

Jail for would-be barrister n Law graduate Marious Pimm, from Cambridgeshire, has been jailed for a year for falsely claiming to be a barrister and offering help to a bankrupt plumber and a woman going through a divorce. He took cheques totalling £4,000 in relation to the bankruptcy and pocketed more than £1,000 for ‘work’ chasing up a debt connected with the divorce proceedings.

The jury heard how Pimm would meet potential clients in The Boat Inn in Whittlesey – described in one report as a ‘pop-up office’ – and would often discuss on-going cases.

He is said to have even joked about his wig being ‘itchy’ when he was in court.

Detective Constable Mark Yendley, who led the investigation, said: “Pimm used his knowledge gleaned from studies at Lincoln University to fool people into thinking he was a qualified solicitor.

“A lot of people in Whittlesey were upset to discover they had been taken in by his lies and are pleased he has now been brought to justice.”

Pimm had consistently denied the charges, saying he had never told anyone he was a barrister, and is expected to appeal. q www.yourexpertwitness.co.uk

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Obtaining data in conjunction with an expert witness instruction TONY SYKES of IT Group UK Limited discusses some common pitfalls n When a solicitor writes or emails with new instructions for a case requiring expert services, individuals and companies like IT Group usually deploy standard procedures not dissimilar to those used in typical commercial contracts. Most cases have required a quotation or estimate to have been prepared in advance of the instructions.

Acknowledgment of the instructions with reference to the quotation is usually despatched by return to the instructing solicitor along with terms and conditions and any qualifications regarding timescales etc.

Assuming all is acceptable, then the big questions are often: Have I been given everything? What further information do I need to do the job? Where might I get that from?

Information also has to be proportionate. If you have quoted just a few hundred pounds to consider an issue and to write a report, you will have difficulty if the instructing solicitors then send you 4 or 5 lever arch files of correspondence with no indication of which parts are relevant.

Other commonly encountered problems are with the quality of the copying. If the case involves computer records or telephone data, as is often the case for IT Group, then sometimes the copies are almost illegible, being photocopies of PDFs. Similar difficulties occur in medical cases and in cases involving accidents where hand-written accounts are photocopied.

At IT Group we regularly ask for electronic copies of key data or, if that is not available, then we deploy state-of-the-art Optical Character Recognition (OCR) techniques to turn paper records into electronic, searchable records. But extreme care has to be taken as OCR is not always 100% reliable and anything relied on has to be checked carefully against ‘original’ disclosure. Even that does not guarantee complete data integrity because you can only check what you have found – it is not possible to check what you have not found.

In many cases, the data needed to undertake the instruction has not yet been obtained and sometimes we are asked to assist in identifying

• Tony Sykes, Senior Partner in IT Group, is a Chartered IT Professional and a Chartered Electrical Engineer. He has twenty years’ experience as an IT and Electrical Engineering Consultant and is an experienced Expert Witness. IT Group provides a broad range of consultancy services including due diligence, business process review, QA audit, insurance assessment, forensic IT / telecoms / electrical systems examination and expert services.

what may be required and how that may be secured. In criminal cases we often make contact with the officer in the case and then typically get directed to the forensic engineer who conducted the original examinations of laptops, mobile phones, call data records etc. Our own independent checks may then throw up new areas of data that might be relevant.

Difficulties arise in two typical scenarios: the first being when the Prosecution has decided not to use forensic IT or telecoms data and we then have to go through the process of advising the instructing solicitors on how to obtain a Court Order for specific disclosure of records. An added difficulty is that very often there is critical time pressure, not of our making, when a trial is looming (or sometimes has already started) and there is not even a means in place to get data, let alone analyse it and report upon it. In these circumstances, it is sometimes impossible to do a thorough job.

Then there are the issues surrounding the Data Protection Act and the Regulation of Investigatory Powers Act which crop up for most experts at some point. In telecoms there are sometimes additional difficulties with ISPs and mobile phone service providers, typically due to the volume of requests for data for forensic analysis. Knowledge and experience of these pitfalls and difficulties does help in the planning and execution of forensic expert services. q

EXPERT WITNESSES

Rapid Turn-Around of Mobile Phone and Computer Evidence Forensic analysis of mobile phones - Handset analysis, Cell Site and Mobile Phone Tracking • Data Recovery for: • • • • • •

Mobile Phone Recovery:

Emails Documents Photographs Calendars and Diaries Web history Deleted content

• • • • • •

SMS Text Messages Contacts Emails Web history Photographs Cell site analysis

Cases include:

• Forensically sound examination

• London Borough of Southwark v IBM

• Court compliant reports.

• Kingsway Hall Hotel v RedSky IT Limited

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

• Watford Electronics v Sanderson CFL • Sam Business Systems v Hedley & Co • Autoroute Circuits v Life Racing Limited • Epsom Telford Limited v Revenue and Customs • Automotive Latch Systems v Honeywell International Inc • Anglia Autoflow Ltd v Wrightfield Ltd • Discovision Associates, Pioneer Electronics Capital Limited and • Pioneer Electronics (USA) Inc v Disctronics (UK) Ltd

Midlands & North Tel: +44 (0)845 226 0331 London & South Tel: +44 (0)207 096 3791 Email: enquiries@itgroup-uk.com www.itgroup-uk.com

• Horace Holman Group Ltd v Sherwood International Group Ltd

For further information visit www.itgroup-uk.com.

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First REIT to launch in September n The UK’s first social housing real estate investment trust (REIT) will bring together 10 housing associations from across south east England and plans to raise £500m by listing on the alternative investment market in September.

Any money raised will be used to fund new homes and to buy Section 106 sites. In May Winckworth Sherwood Solicitors announced that it is advising on the structure of the organisation.

It will be an aggregated REIT providing medium and smaller housing associations with access to new equity funding over a 40-year period, replacing grant and long-term debt financing. Returns will be indexed to social housing rents, keeping landlord and investor liabilities matched. The associations will continue to manage the homes throughout the 40-year period, with ownership reverting to them at the end of the period.

According to the law firm, despite an obvious need for more social and affordable housing in the UK, the withdrawal of Government development grant and unavailability of bank lending means social and affordable housing development are at all-time lows. A REIT is designed to raise significant amounts of private sector funding for investment in social housing.

Keith Jenkins, Senior Partner at Winckworth Sherwood said: “Until now, landlords have

relied on raising cash from grant funding from government, through bank debt or from investors on the debt capital markets. This is not always suitable or viable. Government has been seeking ways of bringing institutional equity investors into the social housing market through a tax-efficient REIT model for a number of years.

“The aggregated REIT model provides security for associations and releases funds for much needed new homes, whilst offering good returns for investors. We have had considerable interest in our aggregated REIT from associations and investors.”

Winckworth Sherwood’s aggregated social housing REIT structure has been launched in advance of the close on 27 June of the Treasury’s consultation on how REITs might

be used in social housing to attract institutional investors.

Keith Jenkins said: “The consultation could be read as an examination of how the Government could use REITs as a way of compelling housing associations to permit private investment. Our model gives associations the opportunity to adopt a REIT under their own terms, rather than being compulsorily REITed.” Winckworth Sherwood is also advising on the structure of a second REIT, to be launched in the autumn, that will buy open-market properties built by large housing associations at a wholesale price, providing security of sale of market stock for the participating associations to release funds for investment in social housing. q

Resolving disputes is an expert activity n One of the most significant developments in the field of construction and property disputes has been the rapid growth of alternative dispute resolution (ADR). As the Royal Institution of Chartered Surveyors (RICS) points out, “alternative dispute resolution is often cheaper and quicker than taking a case to court”. The RICS has a well-established Dispute Resolution Service (DRS) which it claims is the world's largest provider of alternative dispute resolution services to the property and construction industries, with around 10,000 appointments to resolve disputes each year.

With over 30 years under its belt, the service is “working on a continuous development of new products and services to meet clients’ needs”. Its impartiality and the quality of its dispute resolvers mean it can claim to inspire confidence in the parties to a dispute.

All its management and administration systems are accredited to BS ISO 9001:2008. The service also provides access to a panel of highly experienced expert witnesses in all areas of property and construction.

According to the RICS website: “Where two parties cannot agree on the appointment of a single joint expert (SJE), an application can be made to the president of RICS to make an impartial nomination.”

The single joint expert is selected from 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 • Valuation The panel members have many years of experience acting as expert witnesses in both judicial and tribunal proceedings. q • Further information is available from RICS at www.rics.org/drs.

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RICS launches new residential policy n On 31 May the Royal Institution of Chartered Surveyors (RICS) launched a landmark residential policy to help the organisation change the face of the sector and prompt government to ease the on-going pressure caused by the housing crisis.

A functioning, professionalised and accessible housing market is in everyone’s interest, RICS says, and it is looking to encourage the government to deliver legislation, policy and regulation that benefits the consumer, the residential sector and the British economy. Since the end of last year, RICS has been consulting its members and firms across the UK. One message was particularly loud and clear – there is a clear role for professional standards and expertise to help consumers to make informed choices when buying, selling or renting a property and RICS should be leading the way in delivering this.

The economic situation, coupled with the politics of the coalition, has created a unique

political climate where even sensible and beneficial suggestions to change government policy fall victim to the need to reduce the deficit as quickly as possible.

However, RICS believes that both the immediate and long-term issues in the market need to be addressed and the government must deliver legislation, policy and regulation that provide us with the homes that we need, wherever we need them.

The report covers: • Measures to get the stagnant property • market moving.

• The need for mandatory regulation of • both sales and lettings agents.

• Providing consumers with the right • information when buying or selling.

• New ways of boosting Britain’s woefully • low housing stock.

• Tackling problems associated with • social and affordable housing.

The institution’s global residential director Peter

Bolton stated: “To deliver real influence in the corridors of power, RICS needs to have a clear residential policy. In putting this landmark work together, we met with our members and firms of all sizes from right across the country. What came across loud and clear is the desperate need to reform sections of the market and generate growth right across the UK. “We will now take these recommendations to the government with the aim of helping them to improve the residential property sector for those operating within the industry and the public as a whole. Change needs to happen if we are to see an economically viable and professionally driven residential sector and I stand ready to work with members, government, other industry bodies and consumer organisations to achieve this.” q

Appeal Court rules in ‘house or flats’ dispute n Judges have decided that a six-storey building should be classed as a block of flats rather than a house.

A dispute regarding a property in Chelsea, London over its classification was recently heard in the Court of Appeal.

Leaseholder Magnohard had been trying to acquire the freehold for the property from Earl Cadogan and Cadogan Estates, but the latter argued this was not possible since the building was a block of flats.

The court ruled that, since the property includes three small shops alongside the six residential suites, as well as a flat for the housekeeper and a communal entrance hall, it would be unreasonable to call it a house.

Mark Vinall, a partner at Winckworth Sherwood Solicitors specialising in enfranchisement and leasehold property matters, commented: “The Court of Appeal has determined that a block of flats is not a ‘house’ for the purpose of a leaseholder of a building seeking to acquire the freehold title to it pursuant to the Leasehold Reform Act 1967, on the basis that the relevant test is whether it is reasonable rather than possible to call a given building a ‘house’.

“In this case, as originally constructed, the building comprised six residential suites, a communal entrance hall, a housekeeper’s flat and three small shops.” q

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Law Society and Trading Standards issue property trust warning n The Law Society has joined with the North East Trading Standards Association (NETSA) in issuing a warning to consumers alerting them to the risks of using an unregulated will writer to prepare a Property Protection Trust Will.

The warning comes following numerous complaints to North East Trading Standards from members of the public in relation to an influx of firms promoting these products and using scare tactics and highpressure methods to sell them.

The complaints follow a similar pattern and focus on attempts to sell Property Protection Trust Wills or Asset Protection Trusts, which are designed to help home owners protect the value of their home and safeguard their share of a property in the event of changing circumstances, such as the death of a partner. It has been claimed that transferring ownership of the property concerned into the trust would mean that a local authority would not be able to class the house as an asset when carrying out a means test to assess whether it will pay care home fees.

Howard Turton, the Regional Enforcement manager of NETSA, warned: “The potential limitations of such products are also not always conveyed to the homeowner. Local authorities have a legal right to overturn any gifts into such trusts where they can prove that there has been a ‘deliberate deprivation of assets’. For this reason, customers who take out an Asset Protection Trust or similar could find themselves challenged by the local authority at a later date, especially if care home fees are required soon after the trust arrangement is put in place.”

The firms making these calls are unregulated and may not even be qualified or entitled to undertake this work. The Law Society has been running a campaign to warn consumers of the dangers of using will writers who are not properly qualified. It is calling for will writers to be regulated at the earliest opportunity to stop the exploitation of consumers.

The Legal Services Board, the independent body responsible for overseeing the regulation of legal services in England and Wales, released proposals at the end of April to bring will writing and estate administration services within the scope of legal services regulation.

The proposals would, for the first time, see these services brought within the list of ‘reserved activities’ and all those who provide such services would be regulated.

Law Society president John Wotton said: “Without regulation, will writing providers have the freedom to market and deliver services without meeting any professional standards, to the detriment of consumers or, very frequently, their families. The preparation of trust deeds relating to real or personal estate for the purposes of law, in particular, is an offence, unless a person is authorised or exempt under the 2007 Legal Services Act. Key elements of preparing a Property Protection Trust fall within the definition of a reserved activity. Consumers need to be aware that reserved activities can only be carried out by a solicitor or other authorised person, or an exempt person, and that unregulated will writers may not be legally entitled to prepare these sorts of trusts.” q

Law firms the target of online fraudsters n Law firms in the UK are being targeted by international hackers, according to a report in the Law Society Gazette.

The journal quotes former assistant US attorney Seth Berman, now the London-based director of digital risk management and investigations firm Stroz Friedberg.

He warned firms to strengthen online security to protect clients’ data. His warning follows the news that a Russian hacker may have stolen some six million LinkedIn passwords.

Said Berman: “The security and risk landscape is changing rapidly and it’s the very nature of law firms that makes them an active target. We’re facing an increasingly sophisticated array of adversaries, which makes it more important than ever for law firms to recognise the severity of such threats.

“There is no doubt most law firms recognise their obligations and have taken steps to shield client data. But the sector is unusual in the way it deals with information, which sees personal details of individual partners, associates and lawyers readily available on firms’ websites.

“Law firms need to realise that they are being targeted and must tailor policies and training to address this threat.” q

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Customers may be right, but the stakeholders are always left The importance of effective stakeholder engagement

by DR DARRELL JAYA-RATNAM, DIEMconsulting Ltd n As the Olympics approach, the Shard reaches completion and arguments about capacity at Heathrow resurface, more is heard from those considered to be the broader stakeholder community – the people of the local area, investors, corporate boards, lobbyists and politicians. It shows how in the modern age different groups and entities are so intertwined. It also highlights the importance of getting your stakeholder engagement right. Not just holding consultations, as often required by law, but actually having a proper two way interaction that takes account of stakeholder inputs in decision making in a way the stakeholders can buy in to – even if they don’t agree with the result.

The importance of being earnest – about stakeholder engagement At the most basic level there are two reasons stakeholder engagement needs to be done well – the law and money!

In terms of law, for a whole range of major projects, from shops to schools to airports, it is a legal requirement to hold consultations.

Likewise for companies, the Corporate Governance Code 2010 (a legal requirement for public companies) requires companies to… “ensure that a satisfactory dialogue with shareholders takes place and use their AGM to encourage investor participation”.

Meanwhile the Companies Act 2006 (a legal requirement for all types of company) specifies that a key duty of directors is to “promote the success of the company for the benefit of its members as a whole…”. This implicitly requires some engagement with ‘members’ (the equivalent of shareholders for a closed company) to illicit what ‘success’ is from their point of view.

In terms of ‘money’ (or costs), poor stakeholder engagement can lead to both organisational and personal financial loss. Consider the financial impact of protests (and, in the extreme, the riot of April 2011 in Bristol) over new supermarket openings or the treatment of animals in farms that supply them. Then there is the increasing number of attempted (some successful) shareholder rebellions this year over executive pay (Aviva, Barclays, Cairn, HSBC, Prudential, Cookson, Resolution, 888 Holdings etc) or issues such as succession planning (Deutsche Bank). Finally, consider the costs of repeated consultations and possible ‘u-turns’ on government policies, schools building programmes, National Trust forests, routes of rail links, airports and even the subsequent use of Olympic venues.

These two reasons often then combine when legal challenges are made over the consultation process that was conducted. This is typical for major projects but momentum is also building to challenge directors over their consultation with shareholders prior to major strategic decisions.

Acceptable poor consultation practice Do a search on ‘public consultation’ and you’ll usually find it described as three stages: notification, consultation and participation. You’ll also often find a reference to ‘Arnstein’s Ladder’ which is a framework for understanding the different levels of community participation. However, if you then look at Arnstein’s Ladder you will see that ‘consultation’ falls

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under the heading of ‘tokenism’. Alas, all too often this is all it turns out to be. Not intentionally, perhaps, but effectively.

From our work helping corporates and government ministries gain stakeholder buy-in to major investments we see two problems: • Defining ‘stakeholder’ too broadly and hence not getting any clear • views from any well-defined group.

• Relying too much on ‘stakeholder’ input (verbal and written) but • then providing no feedback as to whether and how it was taken into • account.

Knowing your true stakeholder The first challenge is being clear on who your stakeholders really are. One rather good definition is given by Freeman in 1984: “Any group or individual who can affect or [be] affected by the achievement of an organisation’s objectives”.

The italics have been added to highlight the two key aspects of the definition. First, it is a two way thing between the organisation and stakeholder. Second, it is about the organisation’s objectives not just the organisation’s actions. Too often people assume a stakeholder is anyone who can be impacted by an organisation. By linking it to an organisation’s objectives you focus on those who can help or hinder the organisation. In other words, they are the people who have a stake in whether the organisation succeeds or fails (hence ‘stakeholder’).

Too often stakeholder engagements and consultations are handicapped right from the start by spreading the net so widely that no clear view can ever be heard, let alone consensus reached.

The cynics among us might say that this is what big organisations like when ‘consulting’ prior to a major investment, such as a new supermarket, but I prefer never to assume malice before fully discounting incompetence!

Seeing is believing The next challenge is to ensure there is a clear audit trail of inputs made and how they link to decisions taken. Typical consultations take the form of large or small meetings, where stakeholders make verbal inputs, or they can involve a process of collating written inputs. These are a fine start but too often they appear to be the end. I emphasis ‘appear’ because most organisations involved in a consultation, whether by choice or legislation, will try to take stakeholder views into account.

The problem is, how does an executive, or minister, properly

understand and take into account what could be many contradictory views. And even if he or she does, how do they demonstrate they have done so to the stakeholders, especially to those who disagree with the end decision and who will naturally assume they were simply ignored?

In our experience the answer lies in finding an appropriate visual representation of the various interacting drivers. There are many techniques used to provide a ‘picture’ of different problems including benefits maps, causal maps, influence diagrams, flow-charts, valuechains, decision trees and issue trees. Choose the one that best allows you to describe the issue at hand but then, crucially, during the consultation encourage the stakeholders to highlight which area they want to address and record their input against that part of the picture.

This has several benefits. Firstly, stakeholders can see where their concerns fit in relation to all the others. Secondly, by actively demonstrating it has been recorded in the appropriate place it increases buy-in to the overall framework used to make any future decision. From the organisation’s or decision maker’s point of view it is a great way of representing the conflicting issues. But most importantly, once a decision is made, it provides a means of presenting back to the stakeholder how their inputs were used (not ignored) and how some were outweighed by others. Whilst there will always be some who challenge aspects of the evidence used, in our experience the process of inputting, capturing and presenting back the whole stakeholder picture hugely reduces challenge and greatly increases the buy-in necessary for implementation.

Closed-loop stakeholder engagement To refer to the title of this piece, customers can come and go, they may turnover at different rates, but the stakeholder group tends to be much more stable. Whilst an awful lot of effort and money is put into understanding customer needs, too much reliance has been placed on executives and boards to understand what stakeholders want and need and to act appropriately. The modern world is too complex for that and so organisations need to consult effectively.

Rather than the effectively ‘open-loop’ consultation of the present day (only a small subset of stakeholders ever get to genuinely ‘participate’ in the decision) closing the loop through encouraging stakeholders to input against some representation of the whole issue, capturing their views in a visual way and then using this ‘stakeholder developed framework’ to explain the decision can help to gain true buy-in and reduce the chance of expensive legal challenges and delays. q • Dr Darrell Jaya-Ratnam is the founder of DIEMconsulting Ltd which specialises in helping firms generate evidence on the impact of different strategies and investments in order to gain stakeholder support and buy-in. He also lectures on Corporate Strategy at Birkbeck College of the University of London and at the Defence Academy on the Role of the Board. He has written on business modelling in a number of corporate risk publications.

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Is your expert

dual qualified? n In the old days, a reasonably competent chartered accountant could feel quite comfortable giving expert evidence at trial, without special training, and without feeling that one needed to be a member of that exalted profession of expert witnesses.

But now it’s very different. There is no place for enthusiastic amateurs or ‘wannabees’ in courts of law. Solicitors must specialise, and must work to ever higher standards (and for less reward?). So too must the accountant, who professes to be an expert, become a member of two professions – an excellent accountant, of course, but also a trained and experienced expert witness.

You will choose your experts carefully so as not to waste your own good work or damage your client’s interests, and that means choosing someone who is also a member of that second, crucially important, profession.

I have been a full-time expert accountant now for over 23 years, after I passed my audit practice to other partners on being appointed expert defence accountant to the chairman of Barlow Clowes. For younger readers, this was the first really big Ponzi scheme, like Bernard Medoff with a couple of noughts off the figures! I worked on that case full-time with a team of six for eight months, and my report of 43 ringbinders was agreed by the Serious Fraud Office. Our client was found ‘not guilty’ on all charges, whereas Peter Clowes the MD was jailed for 10 years.

Now there was no turning back – I had no clients, so I had to become a full-time forensic accountant. I had learned all the skills at The Academy of Experts – where I am now a fellow – but found at later trials that I was often up against a chartered accountant who hadn’t a clue about expert evidence, and who did his client no favours at all.

I remember one early case where my valuation of a business was challenged by a wannabee. His report was lightweight. At the start of the trial, the judge said that he had often relied on the opinions of Mr Makin (me!!) when he was at the bar, and held him in very high regard, so he would recuse himself to another judge if that caused the other side any difficulty. The other side abandoned the claim during a 10-minute adjournment.

This was not good. Not only did such amateurs not help the client, but there was a risk of the chartered accountancy profession being brought into disrepute, as Professor Sir Roy Meadow almost did to the medical profession.

So when I became a member of the committee for the Forensic Special Interest Group at ICAEW, the idea I brought was for an accreditation scheme – for the ICAEW to award a kite mark to those members who had taken the trouble to learn this second profession, and who could be relied on to write a CPR compliant report to a high standard, to manage a meeting of experts, to understand Part 36, to understand the dynamics of mediation and to give excellent expert testimony.

It took 8 years to develop, but now we have it. One can now be accredited as a forensic accountant by ICAEW in partnership with The Academy of Experts as an accredited expert witness. Look on either organisation’s website, and you will find lists of the very few accountants who have reached this gold standard.

And now we have Jones v Kaney, where the Supreme Court

by CHRIS MAKIN

removed from experts the immunity from suit which they had always enjoyed.

This was a shocking example of an expert being out of her depth. Miss Kaney, a clinical psychologist, was cajoled by her opposing expert into signing a Joint Statement of Experts which he had drafted, which did not reflect what she had agreed, and which she later admitted she had not even read! There was discussion among their lordships, about whether this would discourage experts from acting. It hasn’t, at least not among the forensic accountants I know. And nor should it – the dabblers should be discouraged, certainly, but serious experts have nothing to fear if they continue to act with reasonable diligence and competence. The point is that being an expert accountant is not simply a sexy thing to do between audits, as perhaps it was back in the day, but a serious professional activity, only to be practised by members of that second profession.

And now we have the Hot Tub, where at trial both experts sit in the witness box at the same time (if space allows!) and the judge chairs a discussion between both counsel and both experts. It saves time, and allows the important matters to be flushed out. Any of them can ask questions of any other, and everyone must be on their toes and know their case inside out. So there is no place for the partner from the big firm, with a team of accountants working for him, who takes over the case when the trial is imminent. The accountant giving the evidence must know every scrap of detail and be intellectually nimble enough to see the case in the round, to see the gaps in the other side’s evidence and to meet challenges even from the expert accountant from the other side. This is very different from being cross-examined at a leisurely pace by a barrister whose knowledge of financial matters may be shallow – it is not for the faint hearted.

The Hot Tub has been used in Australia for some time, and to a limited extent in arbitrations in the UK. Now Lord Justice Jackson believes it leads to savings in costs, so next it may well be used in a court near you.

The morale is self-evident: choose your expert accountant very carefully, and don’t let a dabbler spoil your good work. It is essential to have an ‘expert’ who is an expert. q • Chris Makin was one of the first 30 or so chartered accountants to become an Accredited Forensic Accountant and Expert Witness – see www.icaew.com and follow ‘Find a Chartered Accountant’. He is also an accredited civil & commercial mediator and an accredited expert determiner. He has given expert evidence at least 70 times and worked on a vast range of cases over the last 23 years. For CV, war stories and much more go to www.chrismakin.co.uk. www.yourexpertwitness.co.uk

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FIRA’s experts have unrivalled knowledge n FIRA International is acknowledged as the world's leading independent furniture research and technology centre. Expertise in the testing, assessment and certification of furniture is combined with information and advice to provide a comprehensive service to the furniture industry.

Disagreements, whether business-to-business or business-to-consumer, are often resolved by using FIRA’s team of furniture, ergonomics, environment, materials and manufacturing experts. Unfortunately, under certain circumstances, agreement cannot be reached and a legal case ensues. In these situations FIRA’s consultants can offer invaluable expert witness skills and experience.

FIRA specialists have a wide knowledge of how fabrics, structures, cabinet surfacing materials, components and complete pieces of furniture should perform in use. This means that FIRA’s expert witnesses have unsurpassed knowledge of all legal and regulatory aspects of furniture in both domestic and non-domestic environments.

Through its Expert Witness Service, FIRA’s specialist staff can assist with any problems relating to furniture, providing on-site visits if required, or examination of faults under laboratory conditions. If necessary, problems can be reproduced to show how a product was faulty. Manufacturers, suppliers, retailers, lawyers and enforcement authorities can all benefit from this service delivered by FIRA, a recognised authority in the field.

FIRA’s experts frequently stand as expert witnesses in criminal and civil courts. All FIRA expert witnesses are members of the Chartered Institute of Arbitrators, trained to CPR 35, as well as being specialists in their own field.

FIRA’s Expert Witness Service offers the ability to gather evidence, to test, to investigate and to provide first class reporting in court with unrivalled knowledge of the subject and experience in court.

Production of UKAS accredited test reports and provision of expert opinion, accompanied by oral evidence in court, frequently results in a successful outcome.

Only FIRA can provide experts with these credentials for furniture and related items. FIRA has a number of experienced expert witnesses who are based across the UK, with specialisims covering the whole

spectrum of furniture products, components and related items. These include: • Furniture fittings and installation (including kitchens etc) • Fire safety of upholstery products • Finishes and surfacing material • Finishing processes • Fabric and upholstery problems (including beds) • Identification of timber defects and quality problems • Glass in furniture • Board materials and moisture problems • Structural stability, strength and durability • Fitness for purpose • Manufacturing problems • Ergonomics • Health and safety • Manufacturing • Product safety • Timber defects and quality issues • Arena, stadium and auditorium seating • Contract and domestic kitchens • University accommodation • Hotel furniture FIRA’s expert witnesses include the highly qualified ergonomist, Levent Caglar. Levent has been practising ergonomics for over 20 years, with much of his work being on ergonomics in relation to health and safety, the office environment, input into furniture design, risk assessment of VDU workstations and manual handling operations.

He is a particular specialist on equipment and machinery that causes damage or strain to people’s backs and sits on numerous national and international standards committees. This means that Levent is extremely well qualified to work on furniture ergonomics and health and safety litigation cases. q • For more information regarding FIRA’s Expert Witness Service please contact Sue Calver on 01438 777700 or email info@fira.co.uk.

Case Study 1 n The fault had arisen on a coating that had been applied to bath panels. The yellowing was noticed when the finish was applied and then the panel was packaged. When the panel was removed from the packaging there was a distinct yellow effect. This yellow effect appeared to diminish when the panel was exposed to natural daylight

Reply The exposure time in the window is to simulate a period of service when a product may have been on display in a retail window.

In the case of the Ash veneered samples all areas were assessed at equal to or greater than a grey scale rating of 3

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(moderate colour change).

However, in addition to the colour change of the veneer, the colour change observed on the sample of lacquer ‘A’ when applied to a sample bonded with UF (Urea formaldehyde) was a distinct ‘green/yellow’ shade.

In addition, to the colour change of the veneer, the colour change observed on the sample of lacquer ‘A’ when applied to a panel bonded with PVA (Polyvinylacetate) was a very slight ‘green/yellow’ shade. This indicates the lacquer ‘A’ is more susceptible to colour change when applied to a panel bonded with UF adhesive This level of colour change is likely to be

unacceptable, as distinct shading differences will become particularly apparent when viewed under variable lighting conditions within a room. q

Focus on FIRA Expert Witness: Sue Calver n Sue Calver has worked for FIRA for over twenty years, primarily in research and technology, and is currently FIRA Project Manager in the Technical Services department.

Sue’s role involves project leadership, consultancy and expert witness work, managing research programmes, problem investigation and resolution and she is a recognised furniture expert.

Sue is experienced in providing expert witness statements and evidence in court cases, and provides expert opinion on all technical issues relating to business-to-business and consumer-to-business disputes, including personal injury and valuation of loss. Sue is a member of the Chartered Institute of Arbitrators and has completed training on the Civil Procedures Act affecting expert witnesses.

Sue is the FIRA representative on eight British Standards technical committees, including the furniture test methods committee of which she is Chair. Sue also represents the UK on two European Standard Committees concerned with furniture materials and performance attributes. Additionally, Sue represents the UK in the furniture COST (European Co-operation in Science and Technology) action.

Furthermore, Sue is the Technical Project Manager on assignments such as a TSB funded project on utilising lasers in furniture applications, the Sustainable Flame Retardants project, a venture designing furniture that reduces workplace noise and an EU investigation into the coloration of softwoods with UV light. Sue has also worked on a DTI project on powder coating for external use and an EU project on development of test methods for furniture.

Additionally Sue carries out risk assessments of furniture, including

compliance to the General Product Safety Regulations (GPSR) and evaluations of faults and furniture use and misuse, including assessment of all operational functions.

Sue is also a presenter of courses specialising in cabinet and office furniture, materials and fitted furniture installations, as well as being the author of articles for UK and international journals. q

Case Study 2 n Social housing kitchens are showing signs of deterioration shortly after use due to damage by water spillage.

Reply Tenants should be educated in the care of a new kitchen and clear care instructions (perhaps in graphics) should be given to each tenant before they are able to use the kitchen. Most importantly they must be aware that all spillages should be wiped up.

A roll front stainless steel sink unit would be more suitable for lifestyles where a lot of water is frequently spilled onto the surface.

Care should be taken when specifying the furniture and consideration given as to the lifestyle of some tenants, even if they are provided with care instructions it is doubtful if typical kitchen materials could withstand damage.

The minimum worktop overhang should be greater than or equal to 10mm to reduce water spillage into cupboards. The worktop should be level or slightly backwards to discourage small spillages falling over the front edge. This will tend to produce pools of water at the back of the unit and the tenants must still be aware that they should wipe up all spillages immediately. q

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Tree disputes

getting to the root of the problem n Resulting in cases involving damages of hundreds of thousands of pounds – and even more serious issues including violence and death – trees are often the focus of sometimes complex legal issues where specialist expertise is needed.

For example, in one case involving cracking in four terraced blocks of flats, a result of desiccation of the subsoil by the action of encroaching roots from a plane tree, the defendant was ordered to pay over £570,000 which the claimant had been forced to spend on underpinning works to rectify the damage.

The claimant had previously given the defendant notice of the existing damage and, although the tree roots were subsequently pruned, the defendant refused to remove the tree and the claimant commenced the underpinning works.

The House of Lords found that the action of the tree roots in dehydrating the soil and inhibiting rehydration was a continuing nuisance which gave ground to the claimant’s action.

Lord Cooke stated that, applying the concepts of reasonableness between neighbours and reasonable foreseeability, a defendant, having been given notice of the nuisance and the opportunity to abate it, might fairly be expected to bear the cost of reasonably necessary remedial works, and the party on whom the cost fell may recover it.

Another tree-related legal issue which is becoming ever more prominent is the problem of disputes involving Leylandii giant hedges.

There are now around 55 million Leylandii in the UK with thousands of people locked in disputes arising from them – some of which have even led to violence between neighbours and, in one case, an alleged murder.

Leylandii (pictured above) can lead to lack of light, restricted views and even damage in neighbouring gardens, but still 300,000 are sold each year. Many householders buy Leylandii to create privacy – not realising how fast they grow and how much it costs to get them trimmed.

In 2003 a dispute over such a hedge even led to the death of two men. Robert Dickenson, 52, was arrested after allegedly shooting dead his neighbour, 66-year-old George Wilson. Dickenson was found hanged in prison where he was waiting to appear in court on a murder charge.

Leylandii is the most planted and the most hated hedge in Britain and tree experts say we still have not seen the ultimate height for a Leylandii, which could be 200ft plus – exciting from a forestry point of view, but not so exciting if you’re in a neighbouring bungalow!

Other common tree-related issues resulting in legal action include disputes over overhanging branches encroaching on neighbouring property and ‘dangerous’ trees which are on the point of causing damage or injury. Tree Felling Licences and various matters surrounding Tree Preservation Orders and trees in Conservation Areas can also lead to litigation. Indeed, violation of a Tree Preservation Order can lead to an unlimited fine in Crown Court. q

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Cases involving trees require specialist arboricultural advice n Almost everyone likes trees. They provide many benefits, from the aesthetic to biodiversity and from cleaning the atmosphere to providing timber. However, they can become problematic when things go wrong.

Although relatively rare, trees can cause personal injury and death when they fail and this often results in legal proceedings. As recently as 17 June three young boys aged 9 were crushed when a tree fell on them at Wandsworth Cricket Club. There have been a number of key legal cases involving tree related injuries in recent times including Poll v Bartholomew (2006) EWHC (QB) Bristol which was the case that prompted the establishment of the National Tree Safety Group (NTSG) to develop a common sense approach to tree risk management and balance the risks posed by trees against the environmental benefits they provide.

The issue of tree risk management is live and the subject of much debate. It is certain that cases of this nature will occur in the future and these require specialist arboricultural advice such as that provided by Liverpool based Dealga’s Tree Consultancy.

Trees also cause subsidence damage to low rise buildings. This can result in insurance companies taking action against tree owners or those who have effective control over the trees such as local authorities that have protected the trees with tree preservation orders (TPOs). The case law in this area is well summarised in: • Solway v Hampshire County Council (1981) 79 LGR 449 • Patterson v Humberside CC (1996) Const. L.J. 64 • Delaware Mansions v Westminster City Council (2002) 1 AC • (House of Lords) • Jones v Portsmouth City Council (2002) EWHC 1568 TCC • Loftus-Brigham v LB Ealing (2003) EWCA Civ. 1490 Nevertheless, tree related subsidence is a major problem for landowners, insurers and councils alike and requires very specialised advice.

Likewise in the area of planning and development trees are often constraints to proposed developments. Specialist arboricultural consultants such as Dr Dealga O’Callaghan can and do advise developers. They assist them to obtain planning permission, undertake tree constraints plans and, if the system fails, act as expert witnesses at appeals and public inquiries. Dr O’Callaghan has acted in many large appeals and inquiries including the 2nd runway at Manchester

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Airport and Beconsfield Services on the M40. He has acted for both developers and local planning authorities.

Trees are also major causes of unplanned interruptions to the supply of electricity. Network operators have statutory obligations to minimise tree related outages and to ensure, in so far as is reasonably practicable, that their overhead networks are secure from tree damage in times of abnormal weather such as major storm events. To achieve this, the network operators sometimes have to exercise their powers under Schedule 4, Paragraph 9 of the 1989 Electricity Act. This often involves them in hearings before inspectors from the Department of Energy & Climate Change (DECC). This is a very specialised area of work that requires both arboricultural knowledge and experience in utility arboriculture.

Occasionally people undertake work to trees that are protected by TPOs without first obtaining consent from the local planning authority (LPA). This is a criminal offence under Section 210 of the 1990 Town & Country Planning Act and LPAs do initiate prosecutions. The area of TPO law is complex and specialised and typically outside the experience of most solicitors unless they specialise in planning. Only experienced specialist arboricultural consultants should be engaged as experts in cases of this sort.

Competent, qualified and experienced arboricultural consultants are not all that common but those who are, like Dr O’Callaghan, are registered with Your Expert Witness and in the Institute of Chartered Foresters’ Register of Consultants, www.chareterdforesters.org. q

The perfect venue in inspirational surroundings n A four star hotel nestling within the UK’s historical heartland of Warwickshire, boasting 119 rooms, Coombe Abbey truly is a unique and stunning venue for weddings, conferences and special occasions.

Set in 500 acres of parkland, overlooking formal gardens and a tranquil lake and originally built as a Cistercian Abbey in the 12th Century, Coombe Abbey has now been lovingly restored to its former glory by its current owners No Ordinary Hotels.

Conveniently located a few miles from the M1 and M6, close to major business cities such as Coventry and Birmingham as well as historical towns such as Warwick and Stratfordupon-Avon (Shakespeare’s birthplace), Coombe Abbey is also an ideal base in which to explore the midlands.

Dining at Coombe Abbey is a feast for all the senses, whatever the occasion. Subtle lighting and lavish furnishings, combined with unobtrusive yet attentitive service, makes dining at Coombe Abbey a truly memorable experience. They offer classical dishes, locally sourced ingredients – where possible with an original twist – and a fine selection of wines to complement. Menus change regularly and throughout the year they offer various dining offers you can’t possibly resist.

For those looking to host a special event in the privacy of their own exclusive dining room Coombe’s private dining rooms can accommodate anything from 10 to 120 guests, allowing you to host your own party in a candle lit suite. They also offer an event planner service to make you and your guests’ time at Coombe all the more memorable.

Why not live like Lordes and Ladyes of a bygone era and enjoy a hearty feast fit for a King! The hotel’s award winning Mediaeval Banquet, which has been running for 40 years, provides a very entertaining and fun night out where you can dress up in full mediaeval attire to enhance your experience.

This truly is a no ordinary hotel! q

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New tribunal will hear fitness-to-practise cases n On 11 June the General Medical Council (GMC) launched the independent Medical Practitioners Tribunal Service (MPTS): the biggest shake-up of fitness-to-practise hearings since they were established in 1858.

The MPTS is a new impartial adjudication function for doctors and a key part of the GMC’s fitness to practise reforms. Based in Manchester, it is part of the GMC but operationally separate from the regulator’s complaint handling, investigation and case presentation. It is also accountable to Parliament.

The tribunal is chaired by His Honour David Pearl who has held a range of senior judicial roles including President of the Care Standards Tribunal and Commissioner of the Judicial Appointments Commission. He is responsible for appointing, training, appraising and mentoring MPTS panellists and legal assessors.

He said: “Establishing the MPTS assures those who come into our processes that we are independent of investigations into doctors’ fitness to practise, that the appointment of panellists for hearings is separate and that all decisions are made completely impartially.

One of my earliest priorities is to make improvements to the way that panellists are trained and performance managed through regular appraisal and quality assurance, which will bolster the quality of decision making.”

The panels can, in the most serious cases, remove or suspend a doctor from the medical register or place restrictions on their practise. The MPTS can also take early action to ensure patient safety by considering cases before a full fitnessto-practise hearing, where it may be appropriate to place restrictions on a doctor’s

practise immediately or suspend their practice while investigations proceed.

Niall Dickson, the Chief Executive of the GMC said: “The launch of the MPTS is the biggest change to doctors’ fitness-topractise hearings for more than 150 years.

It represents a key part of our reforms and delivers a clear separation between investigations and the decisions made about a doctor’s fitness to practise.

“Although panels already make their decisions independently, it is important that their autonomy is clear and that the oversight of their work is quite separate from our investigatory activity. We hope that the MPTS will strengthen professional and public confidence that our hearings are impartial, fair and transparent – the fact that the service is led by a judicial figure who has a direct line to Parliament should provide that assurance.” q

Whiplash debate heats up n Opinion continues to be divided on the reform of the procedures for claiming for whiplash injury. At the beginning of May the Justice Secretary Kenneth Clarke and Transport Secretary Justine Greening made a joint announcement of proposals for an accreditation system for doctors who assess whiplash claims.

According the Law Society Gazette: “Reform of the whiplash claims system has been imminent since the start of this year, when Prime Minister David Cameron described Britain as the ‘whiplash capital of Europe’.”

On 14 June the same journal quoted the chairman of the Family Doctor Association, Dr Peter Swinyard, as having come out in favour of the reforms, in particular the requirement to see a specialist in the field.

Dr Swinyard said: “You always assume people are not lying to you, but with the best will in the world you sometimes have a hunch things are not as they seem.

“I’ve been in general practice for 27 years and the number of people coming in just to have their whiplash documented is very much higher than it used to be. It would be greatly in the public interest to have specialists looking at this diagnosis. If people are suffering from ‘compensationitis’, the sooner they’re weeded out and sent on their way the better.”

The British Medical Association has been more cautious in its welcome warning that, if GPs were still expected to refer patients, that would not ease the pressure on family doctors.

The insurance companies welcomed the reforms, while the president of the Association of Personal Injury Lawyers (APIL), Karl Tonks, said in a statement: “Before it announces a raft of propositions which risk barring genuinely injured people from bringing legitimate claims, the Government must have a wider debate about the real issues, and it must also hold the insurance industry to account.” q www.yourexpertwitness.co.uk

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Former MP case brings plea law into spotlight O The case of the former Labour MP who was judged unfit to plead on 21 charges related to expenses claims is a high-profile example of an area of law that is often misunderstood and is currently under review.

Margaret Moran was assessed by two psychiatrists, including one commissioned by the prosecution, who agreed she was not fit to plead.

The prosecution was consequently dropped.

The law on fitness to plead has been the subject of a consultation by the Law Commission, which is due for report this summer.

PsychologyDirect describes itself as “The UK’s largest network of independent psychologists”. It provides experts to act as expert witnesses in all manner of legal situations, including assessment of whether a defendant is fit to plead.

In its discussion on unfitness to plead it refers to the consultation and summarises the current law thus: “The law on unfitness to plead is concerned with whether or not an accused is able to stand trial and, if not, the procedure that should be used to deal with that accused. Where

the issue of unfitness to plead arises, the court does not consider the accused’s guilt, but rather two distinct issues. First, there is the question of whether the accused is ‘under a disability’ which renders it inappropriate for him or her to be tried. This can be due to a disability caused by a physical impairment or a mental disorder.

An example would be an accused who, as a result of very low intellectual ability, is unable to follow the process of his or her trial. Secondly, if the court finds that the accused is under such a disability, the jury must determine whether or not the accused did the act or made the omission charged. There is no statutory provision for the legal test of whether or not an accused person is unfit to plead. The test itself, known as the Pritchard Test, is covered by the common law.”

Interestingly, CPS guidance recognises that a mental impairment may be caused or exacerbated by the prospect of the trial. The guidance states: “…in some cases the defendant may have become disturbed and depressed by the mere fact that his or her conduct has been

Former Labour MP Margaret Moran

discovered, and any suggestions that continuing the criminal proceedings will significantly worsen the defendant’s condition should be evaluated carefully. In serious cases, where a prosecution is plainly needed unless there is clear evidence that continuing the case would be likely to result in a permanent deterioration in the defendant’s condition, it may be appropriate to obtain an independent medical report. Where the prosecutor is satisfied that the probable effect on the defendant’s health outweighs the public interest considerations in favour of a prosecution, the case should be discontinued and full reasons recorded on the file.”

It is important to recognise the distinction between unfitness to plead and the defence of insanity, which the Law Commission has also recognised as needing reform as it lags behind current psychological thinking. R

Psychologist offers guidance on assessing child evidence O The March issue of Counsel magazine carried an article by Dr Sarah Krähenbühl, an associate member of PsychologyDirect, chartered psychologist and lecturer in psychology at Staffordshire University and The Open University. The article reported on extensive research undertaken by Dr Krähenbühl on interviewing strategies used in children’s forensic interviews. She has highly specialised skills in the area of child testimony. She is also a joint holder of a research grant from the British Academy to fund a project examining ground rule implementation in Achieving Best Evidence (ABE) and associated effects on children’s testimony.

In the past two years Dr Krähenbühl has written over 20 expert witness reports concerning the reliability and credibility of children’s evidence, competency and/or cognitive ability for the Family or Criminal Courts and has given evidence in the Family, Magistrates and Crown Courts in both England and Wales and Scotland. In the article in Counsel she explained that she has “…come to realise that there is a lack of understanding and awareness of the role of the expert witness and what he/she can and cannot do in the assessment of children’s testimony.”

She has also found that the quality of the information obtained during the interviewing of a child witness “varies considerably”. R www.yourexpertwitness.co.uk

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A specialism

born of warfare O Plastic surgery as a specialist discipline in medicine has its origins in the work done during and after the First World War in the reconstruction of the faces of servicemen mutilated in the fighting.

One of the pioneers was Major, later Sir Harold Gillies of the Royal Army Medical Corps, who worked at Queen Mary’s Hospital in Sidcup – at the quirkily-named Plastic Theatre. Gillies went on to develop the processes used in reconstruction for cosmetic purposes.

There are two associations representing the discipline in the UK: the British Association of Plastic, Reconstructive and Aesthetic Surgeons (BAPRAS), which was originally the British Association of Plastic Surgeons, and the British Association of Aesthetic Plastic Surgeons (BAAPS). Many members of both organisations offer expert witness services.

The NHS makes the distinction between plastic surgery for reconstruction following injury or illness and that carried out for elective cosmetic purposes. As the BAAPS points out, however, all surgery carries with it risk and should not be carried out without that risk being assessed. R

Profession welcomes Howe report, but victims remain unimpressed O The biggest scandal to have hit the plastic surgery profession took a new turn with the publication on 14 May of health minister Lord Howe’s review of the PiP breast implants affair. Lord Howe found that, although the regulator acted appropriately and followed scientific and clinical advice, there is room for improvement and serious lessons must be learned.

Lord Howe was tasked with looking into whether the Medicines and Healthcare products Regulatory Agency (MHRA) and the Department of Health acted properly both before and after information about the implants came to light. He made a number of recommendations for improvements to the operation of the MHRA, including that it should identify ways of gathering better evidence on the safety of devices, broaden its approach to analysing reported problems with higher risk medical devices and find better ways of communicating with the public.

The review also calls for the operation of the European regulatory system to be improved and for health professionals and providers to be better at reporting problems when they occur.

Two of the leading professional bodies in the field broadly welcomed the report but repeated calls for a mandatory register of implants.

The president-elect of the British Association of Aesthetic Plastic Surgeons (BAAPS), Rajiv Grover, said in a statement: “We welcome the findings of the Government’s review into the PiP scandal,

and agree in particular that there should be a better system of reporting for medical devices, with data gathered from a wider set of sources that should be routinely reviewed. For the last few years, BAAPS has been championing the reinstatement of a compulsory implant register that would monitor not just breast but all types of implant put into the body. The register is part of our regulation proposals put forward earlier this year and would immediately address all the recommendations put forward in this report, as would a mandatory safety audit based on the model that BAAPS requires of all its members.”

Tim Goodacre, chairman of the professional standards committee of the British Association of Plastic, Reconstructive and Aesthetic Surgeons (BAPRAS), said: “BAPRAS welcomes the findings of Lord Howe’s review and we hope that this will lead to improvements in the regulatory system for medical devices. We urge members to vigilance and rapid reporting of adverse events, especially involving new products and devices and will encourage heightened awareness in both NHS and private sectors through every means at our disposal.

“We also welcome improved systems for the detection of trends, and the better responsiveness of the MHRA to early detection and improved communication with other governmental and European institutions.

“We naturally also support fully the recommendation that a well-designed Breast Implant Registry be re-established,

and believe that such a process could act as a model or template for other higher risk implanted devices.”

Not everyone was heartened or reassured

by Lord Howe’s findings, however. A medical negligence specialist who represents over 100 women affected by the scare was scathing about the peer’s statement that: “The MHRA had to balance the need to provide full information against the risk of causing undue concern to women when they did not have clear evidence of potential harm.”

Stephanie Fallon of Merseyside-based Lindsays Solicitors, said: “It is this finding that has caused consternation among those women who have been deprived of an opportunity to make a decision as to whether or not they wished to retain implants containing industrial grade silicone and a high rupture rate in their bodies.

“It is not an executive decision to be made by a regulatory body but a decision to be taken by the women themselves, having regard to all of the relevant information.” R www.yourexpertwitness.co.uk

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MPs call for regulation of plastic surgery ads n According to a report published by the All Party Parliamentary Group (APPG) on Body Image, there are an increasing number of people in the UK with a negative body image, with nearly 75% of respondents to the consultation reporting that ‘media, advertising and celebrity culture’ were perceived to be the main social influences on body image.

Moreover, according to the report: “The over-reliance on idealised, digitally-altered images has also stimulated consumer demand for products and services to achieve a particular look, such as cosmetic surgery and supplements.” Those seeking cosmetic surgery were seen as consumers rather than patients, the report said.

Responding to the report, BAPRAS said it agreed with the recommendation for a separate code of regulations to be drawn up governing cosmetic surgery advertising and called for an outright ban on such adverts in public places such as billboards and public transport.

The BAAPS also announced that it is funding long-term research into psychological assessment of patients.

Consultant plastic surgeon and BAAPS president Fazel Fatah declared: “We fully support the group's recommendation for the establishment of a separate code for cosmetic surgery advertising. The unrestricted ads, which we see on television and on the side of buses are clearly having a negative impact on vulnerable people and particularly children, and should be severely restricted if not banned outright.”

The report also found that one in five cosmetic surgery patients could be suffering from ‘imagined ugly syndrome’ or body dysmorphic disorder (BDD). The recommendations call for mandatory screening of patients prior to undergoing cosmetic surgery and further research to assess the

long-term impact on patients’ psychological wellbeing, which BAAPS is currently undertaking.

Fazel Fatah continued: “The recent report by the National Confidential Enquiry into Patient Outcome and Death (NCEPOD) into cosmetic surgery found that routine psychological checks were carried out in less than 35% of sites.

At BAAPS we have held a number of scientific meetings on this theme over the years, and are currently funding research in collaboration with the Centre for Appearance Research at the University of the West of England into developing a reliable psychological assessment tool to be routinely used in every consultation to make sure that patients who may have BDD or other psychological disorders are identified and advised appropriately.”

The research is being conducted by psychologist and BAAPS member Professor Nichola Rumsey of the Centre for Appearance Research at the University of the West of England (Bristol) and clinical psychologist at the Royal Free Hospital, Alex Clarke. q

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Dentists dispute OFT findings n A study by the Office of Fair Trading (OFT), published on 29 May, found that around 500,000 dental patients each year may be provided with inaccurate information by dentists regarding their entitlement to receive particular dental treatments on the NHS. As a result they may pay more to receive private dental treatment.

The report also raises concerns about continued restrictions preventing patients from directly accessing dental care professionals, such as hygienists, without a referral from a dentist. The OFT considers these restrictions to be unjustified and likely to reduce patient choice and dampen competition.

Other issues of concern highlighted in the report include the complexity of the complaints process for patients and instances of potential pressure selling by dentists of dental payment plans.

In response the British Dental Association (BDA) claimed that the report fails to take a practical view of the complexities and realities of dental care.

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Dr Susie Sanderson, chair of the BDA’s Executive Board, said: “Research by bodies including the regulator of dentistry, the General Dental Council, confirms that the vast majority of patients are happy with the care they receive. The OFT’s own research also confirms this to be the case.

“This report treats dentistry purely as a market and dental care as a commodity. In doing so, it has taken a simplistic view of dental care that fails to take into account the huge sums of money dentists invest in surgeries and ignores the unique role in screening and diagnosis that dentists are trained to perform. Dentistry is not a commodity, it is the delivery of healthcare to real patients. Failing to understand that serves neither dentists nor patients well.”

• In the next issue of Your Expert Witness, a special feature will present some of the issues involved in facial and dental injuries.

In addition, the area of clinical negligence and malpractice will be considered. q

Horse rider loses injury appeal n An activity which commonly leads to facial injury is falling from horses. It is also an area where litigation often follows.

However, recent rulings in the Court of Appeal may stem the flow of such claims.

In February the court dismissed an appeal by a woman who was thrown from horse when it reared. The horse trod on her face, causing the injury.

Her claim for compensation against the horse owner, who was offering to rehome it with the claimant, was rejected at Newcastle County Court. The judge ruled that, as an experienced rider, she had assumed the risk of injury when she chose to ride the horse.

The lady, a Mrs Goldsmith, appealed, claiming that the horse had bucked more violently than is usual, but the appeal was rejected. The court ruled that she had “voluntarily accepted the risk of injury when riding the horse”. q

How I work as a locum GP and avoid complaints

by DR BASHIR QURESHI FRCGP, Hon FRSPH. • Expert witness in cultural, religious & ethnic issues in litigation.

• Expert witness in GP clinical negligence.

n Retired does not mean tired again, it means experienced. I am retired from the National Health Service but I do locum GP work because I cannot do gardening at home. From the time one is born until the time one dies, everyone has to fill time. I was lucky to be born as a positive thinker and to remain so. I believe that even God only helps those who help themselves.

In addition to locum GP work, I wear many hats including being an expert witness in cultural, religious and ethnic issues in litigation and also in GP Negligence. Before saying anything I check three things: Do I have something new to say? (which I always have). Is there anyone willing to listen to me? How much should I say now and say later? Some people listen to me like a Samaritan, but take no notice, whereas others find it thought provoking and helpful. Criticism is also a positive activity and a way to learn. I enjoy knowing that I am a British citizen and that Britain is a democracy. I am aware that in a democracy everyone but everyone has a right to be heard before being ignored.

The chairman decides. He/she may ask for a vote if the committee agrees, otherwise the item is taken on board. Only a leader is often elected but their appointees are selected. To live and let live is the best policy, as everyone has their own way.

I enjoy whatever I do, including locum GP work. The perk in this work is that nothing can happen without my signature. I have to be skilful, careful, tactful and helpful, without taking any risk to myself.

Locum work is a matter of supply and demand. The principals would try before they buy. It is a good business and there is no reason to cry. I respect idealists and follow realists but listen carefully to both and take balanced steps. A locum’s job is as good as his/her last performance.

You can often win but not always and one must remember that eventually we are all answerable for what we do. One of my GP trainers used to say “As a GP, do right and fear no man; do not write and fear no woman”. In the golden old days, GPs wrote in patient’s notes, sometime illegible even to themselves, and there were no solicitors or judges to read their notes. Now it is an era of computers, audits and litigation. Everything changes in this world except this principle.

My suggestions to fellow general practitioners in the UK would be: • Politics, economics and law have as much to do with ‘patient care’ • as medicine.

• Academics and politicians only sometime love each other. GPs • need them both.

• Never say ‘never’ or ‘always’ as anything can happen in general • practice.

• A general practitioner does know and is expected to know • something about everything.

• A specialist knows and is expected to know everything about • something.

• A GP should deal with what is possible and must refer to a • specialist that which is not.

• Hospital doctors can only see patients referred by general • practitioners.

• Patients’ confidentiality laws must be followed in Britain. Write • notes clearly. Remember, these notes may be read by patients, • lawyers, witnesses and judges.

• No one is immune from law. Idealists get trapped in breaches • more than realists.

• A locum is akin to a bus driver or a pilot – check everything and • drive safely.

Please beware Do not become totally subjective. There is no such thing as ‘my patient’. You only need one patient to complain against you and you would change.

Please remember Do every thing objectively and professionally. Write notes medicolegally. Listen to academics but remain a realist. Change with changing rules. q

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Olympic drug testing lab gains accreditation n In April the laboratory that will carry out doping tests for the London 2012 Olympic and Paralympic Games received its accreditation from the World Anti-Doping Agency (WADA). The WADA accreditation process, which spanned a two-year period, was based on two international standards – ISO/IEC 17025 and the International Standard for Laboratories – which required the laboratory to undergo a series of rigorous tests to establish its analysis credentials.

The laboratory, in Essex, has been provided by pharmaceutical company GlaxoSmithKline (GSK) and will be operated by leading anti-doping experts from the world-renowned Drug Control Centre at King’s College London, supported by scientists from around the world.

Jonathan Harris, head of anti-doping at the Games’ organisers LOCOG, said: “The WADA accreditation is a green light signal that the lab is ready. The successful partnership between LOCOG, GSK and King’s has enabled us to present to WADA a brilliant laboratory for King’s to operate at Games time.”

Drug and alcohol conference set for Brighton

WADA President John Fahey said: “Achieving WADA accreditation means that the London 2012 Anti-Doping Laboratory will operate to the highest standards of sample analysis during the Olympic and Paralympic Games.

“Doping athletes must know that there is a very good chance they will be tested this summer and that everything scientifically possible – and with the assistance of growing intelligence - will be done to make sure that their efforts to cheat are detected by the experts at the laboratory.”

Over 6,250 samples will be analysed throughout the Olympic and Paralympic Games – up to 400 each day, which is more than at any other Games. The laboratory, which measures the size of seven tennis courts, will be in operation 24 hours a day, seven days a week.

Professor David Cowan is head of the Department of Forensic Science and Drug Monitoring at Kings College, and director of its Drug Control Centre. He played a key role in the successful 2012 Olympic bid and has been involved in the science of anti-doping across four Winter Olympic Games, two Summer Olympic Games and several Commonwealth Games. He has provided expert witness statements in numerous doping cases, including at the Court of Arbitration for Sport and the FA. Prof Cowan, pictured below at the opening of the facility (right) with Olympics Minister Hugh Robertson (left), said: “These laboratories are the most high-tech labs in the history of the Games, analysing more samples than ever before. We have developed, with GSK support, super-fast and super-sensitive technologies to be able to detect use of prohibited substances. Our role is to ensure the efficient and effective operation of the lab to deliver robust anti-doping testing for the Games.”

There are just 35 accredited anti-doping laboratories in the world and the King's laboratory is the only one in the UK. q

n Brighton will be the host on 5 July of the 16th Sussex DAAT (Drugs and Alcohol Today) conference, together with the national Drugs and Alcohol Today exhibition. The conference is staged in partnership with Brighton and Hove Drug and Alcohol Action Team.

A full programme of seminars and Continuing Professional Development (CPD) events will be taking place alongside the conference, centred on a number of main subject headings, including The Big Picture, Families and Young People, Mainstreaming Recovery and Engage and Influence.

Speakers will come from the NHS, universities, national and local government, charities and expert witness service Afentis Forensics.

According to the organisers: “As one of the World Health Organisation’s Healthy Cities, Brighton and Hove has been working hard to promote health and reduce inequalities. No longer ‘Drug Death Capital’ of the UK, the city is still battling substance misuse issues with, for example, hospital admissions for alcohol-related illness increasing at twice the national rate and drinking among young people rising alarmingly. Where better to discover the cutting edge initiatives and innovative approaches needed to make progress in the sector?” q

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Varicose Veins the risks of minimally invasive techniques

by Philip Coleridge Smith DM MA BCh FRCS Consultant Vascular Surgeon and Medical Director, British Vein Institute and Reader in Surgery, UCL Medical School n The NHS treats about 35,000 patients per year for varicose veins and about another 10,000 are treated in private hospitals. This is a commonly undertaken operation but varicose vein treatments are amongst the most common giving rise to medical negligence litigation in general and vascular surgery.

In recent years several new methods have come into use which require surgeons to use a new range of skills and equipment to cure varicose veins. These offer less invasive treatments but surgeons are often less familiar with new techniques and this may also give rise to complications of treatment.

Each type of treatment carries risks specific to that treatment as well as some problems which are common to all treatments.

Varicose vein surgery Surgery for varicose veins has been undertaken for more than 2,000 years although current ‘vein stripping’ techniques have only been in use since the beginning of the 20th century.

Varicose veins lie close to other important structures including arteries, veins and nerves.

Surgery performed in a substandard way may cause damage to these structures including ligation or stripping of the main artery or vein to the leg or damage to a major motor nerve leading to disabling paralysis of the limb. Such events affect only a very small proportion of operations but are very likely to give rise to a claim for damages. Cutaneous nerves providing sensation to the skin run close to many varicose veins and commonly suffer damage during varicose vein surgery leading to some loss of normal sensation in the skin in up to 20% of patients. Fortunately most of these cases improve with time and a more limited number of patients experience long term numbness of the skin.

Following varicose vein surgery bruising of the leg is invariable and more severe haemorrhage may also arise. Wound infections are fairly common and scars may persist in the leg, especially if incisions to remove varicose veins are made in a substandard manner. Less commonly, deep vein thrombosis may complicate any treatment for varicose veins. Appropriate precautions should be taken to minimise the risk of these complications, especially the prevention of post-operative deep vein thrombosis.

Patients may find that the outcome of their treatment is disappointing. Perhaps they had been given unreasonable expectations of the outcome of treatment or the surgeon may have undertaken surgery which would not be likely to improve the appearance of the limb. Such claims may be more difficult to pursue. I have provided advice in cases where a poor cosmetic result has been shown to be due to a substandard technique and a favourable settlement has been obtained for the claimant.

Modern varicose vein treatments In the last decade or two several new ways of curing varicose veins have been introduced.

These use a number of different strategies to destroy the veins but without removing them from the leg. Veins obliterated by these treatments are reabsorbed by the body in the months following treatment. In general the more modern methods are associated with far less postoperative discomfort and a more rapid return to normal activities and are to be welcomed.

However, during the ‘learning curve’ for new methods of treatment a number of unintended consequences may arise. In addition, the new methods of treatment have complications specific to the technique.

The new methods of treatment include the use of skills with which many surgeons used to conventional surgical methods are unfamiliar.

Minimally invasive methods necessitate ultrasound guided treatment which is not a standard surgical skill and requires significant amounts of training to gain basic competence.

Care must be taken during treatment since heating or injecting the wrong section of vein can lead to ineffective treatment or cause unintended damage to nearby structures. Many veins have nearby nerves which may be damaged by thermal ablation of the associated vein. Patients should be aware of the range of complications that may arise after the new types of treatment.

The thermal ablation techniques are the most widely used of the minimally invasive treatments.

A catheter is passed along the vein to be treated and used to heat the vein by either electrical or laser energy. Another method heats the vein using small puffs of steam introduced via the catheter. All of these methods require the treated vein to be surrounded by a substantial volume of

dilute local anaesthetic solution to prevent pain which would otherwise result from heating the vein. Temperatures involved range from about 120oC with electrical heating to 800oC with some laser systems. The solution also insulates the surrounding structures such as nerves and the skin, preventing these from being damaged during heating of the vein.

One of the hazards of thermal ablation is that if heat is applied to the wrong thing then it too may be damaged. Great care must be taken to avoid heating the skin and skin burns are a recognised, though infrequent, complication of this treatment. Sensory nerves running adjacent to the vein may also be damaged leading to regions of paraesthesia and numbness. Thermal ablation techniques have been in use for more than 12 years and so the benefits and possible adverse events which may be encountered are well known.

During ultrasound guided foam sclerotherapy, a foamed sclerosant, is injected into the veins to be treated under ultrasound guidance.

This method is a modern version of injection treatments originally descried more than 165 years ago. Creating foam from drugs which have been used to inject veins for decades, multiplies the efficacy of treatment by about 20-fold. Long term eradication of varicose veins has been shown following this treatment. Ultrasound imaging is required to place the treatment in precisely the right location. Experienced practitioners can readily identify veins which require injection and guide a needle to the correct place. A very small number of instances of inadvertent intra-arterial injection has been reported. If a major artery is injected with foam severe damage to the leg results which may necessitate amputation of part of the limb.

More common adverse events include the www.yourexpertwitness.co.uk

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TABLE 1

Complications of varicose vein treatment. This table includes the more important complications of treatment but is not intended to be exhaustive.

Treatment

Examples

Common Complications

Serious Complications

Varicose vein surgery

• Stripping operations • Phlebectomy, hook • phlebectomy, removal of • varices

• Post-operative bruising and pain • Wound infection • Lymphatic problems: lymph leak, lymphocoele • Sensory nerve injury • Scars • Poor cosmetic outcome • Recurrence or persistence of varicose veins • Thrombophlebitis • Complications arising from general anaesthesia

• Damage to motor nerves • Damage to main artery or vein, eg • femoral artery, femoral vein • Deep vein thrombosis • Lymphatic injury resulting in • lymphoedema

Thermal ablation techniques

• Endovenous laser • ablation, endovenous • radiofrequency ablation, • steam ablation

• Post-operative bruising and pain (much • less than following varicose vein stripping • procedures) • Sensory nerve injury • Thrombophlebitis • Poor cosmetic outcome • Induration over track of treated vein • Recurrence or persistence of varicose veins

• Skin burns • Deep vein thrombosis • Fracture of catheter/laser fibre • • leading to retention of part of the • catheter system in the patient’s leg • (rare)

Foam sclerotherapy

• Foam sclerotherapy • of saphenous trunks, • saphenous tributaries and • of varicose veins

• Post-operative bruising and lumps (much less • than following varicose vein surgery) • Transient chest symptoms and/or visual • disturbance • Thrombophlebitis • Poor cosmetic outcome • Recurrence or persistence of varicose veins • Induration over track of treated vein • Persistent skin pigmentation – lasting many • months.

• Deep vein thrombosis • Severe allergy to sclerosant drugs • (rare)

ClariVein™

• Mechanically assisted • sclerotherapy

• Not fully established

Sapheon™

• Endovenous glue • occlusion of saphenous • trunks

• Not fully established

retention of excess thrombus within the treated vein leading to lumps and bruising in the legs. These sometimes become very tender due to the development of thrombophlebitis (inflammation of the vein). Skin pigmentation may arise over treated veins, sometimes taking many months to resolve. Immediately following injection inflammatory factors are released from the treated veins and travel by the blood to the lungs. This may lead to tightness of the chest or coughing in a few cases. In patients with migraine, containing circulation of the inflammatory factors may lead to visual disturbance, experienced by migraine patients early in the onset of an attack. Both of these problems resolve within 10-30 minutes in most cases.

A more recent technique is ClariVein™ in which a catheter, equipped with a rotating wire powered by an electric motor, is passed along the vein. As the rotating wire is withdrawn it causes damage to the lining of the vein. At the same time a sclerosant is injected via the catheter into the vein to complete the treatment.

The outcome of this technique is probably fairly similar to that which may be obtained by ultrasound guided foam sclerotherapy. This is a fairly new method and detailed long-term studies have not yet been reported.

A further technique which remains in the early stages of evaluation is Sapheon™ which comprises a catheter system used to deliver cyano-acrylate glue into the saphenous vein.

This obliterates the vein by sticking the walls of the vein together. Only limited data of efficacy

and hazards of this technique has so far been published and so complete understanding of its safety and efficacy is yet to be established.

Table 1 summarises the complications of varicose vein treatments in common use. All treatments might incur the remote risk of postoperative death (<1 in 100,000) but surgeons would not normally mention this to patients since it might unnecessarily raise concerns about the treatment. This complication has been omitted from the table.

Patients should be warned of the possibility of the complications that I have mentioned in this table before undergoing treatment, as part of good clinical practice. Claims arising from post-operative complications in the ‘common complications’ column can probably be defended under these circumstances. In the ‘serious complications’ column, the problems of damage to major arteries, veins and motor nerves (following surgical treatment) should never happen and claims arising from these problems may be difficult to defend. Similar arguments probably apply to skin burns following endovenous thermal ablation methods.

Post-operative deep vein thrombosis Deep vein thrombosis may occur following any treatment for varicose veins. This is more likely to occur in some patients than in others so selective use of preventive measures is considered appropriate. Patients with a previous history or family history of venous thromboembolism or thrombophlebitis, the elderly, those with severe venous disease (e.g. leg ulcers) or very

large varicose veins are most at risk. Most treatments for varicose veins include the use of compression stockings or bandages and these may be sufficient in patients assessed as being at low risk. For those at moderate or high risk of DVT additional measures should be taken, most commonly the injection of low-dose low molecular weight heparin. Manufacturers of these drugs recommend a 7-10 day course of treatment following surgery but it is common practice to use only a single dose on the day of treatment in view of the reluctance of patients to inject themselves following discharge from hospital. However, an observational study found no evidence that this strategy reduced the risk of DVT following varicose vein surgery. In the event of a DVT occurring under such circumstances it could be argued that the DVT would have been avoided had the clinicians complied with the manufacturer’s recommendations.

In general, the outcome of minimally invasive treatments is excellent in skilled hands. The hazards of these treatments are probably fewer than those of conventional varicose vein surgery. Certainly the post-operative course is less uncomfortable for the patient and a more rapid recovery from treatment can be expected. q References: • Goodwin H. – Litigation and surgical practice in the • UK. Br J Surg 2000;87:977–9 • van Rij AM, Chai J, Hill GB, Christie RA. – Incidence of • deep vein thrombosis after varicose vein surgery.

• Br J Surg. 2004; 91: 1582-5

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What’s in a name?

by DR ANTHONY CLARKE, BSc MB BS FRCP Consultant in Rheumatology and Rehabilitation, Bath

n “There is some debate as to the appropriate diagnoses which have been reached in this case.” This is a quotation from instructions I am working on at the moment. There are expert reports from a general practitioner, an orthopaedic surgeon and a psychiatrist. The alleged injuries are as a result of a road traffic accident, resulting in chronic pain. The diagnoses listed include ‘soft tissue pain’, ‘whiplash injury’, ‘fibromyalgia’, ‘depression’ and ‘a chronic pain disorder’. I have been asked, in effect, to say which is the correct one, or whether there may be a better one. The temptation is to say, “I don’t know and it doesn’t matter.”

It does matter because the size of any award may depend on the final diagnosis. It does not matter because a diagnosis is a label applied by an external observer in an arbitrary way. Taxonomy, the discipline of classifying objects, is an imprecise science. It satisfies a basic human need to compile lists and place ‘things’ in boxes. One certain way to upset a patient is not to offer them a diagnosis. We all seem to crave the need for our ailments to be squeezed into little pigeon-holes. One problem with this approach is that old diagnoses change and new ones are defined. What does not change is the constellation of signs and symptoms that the individual patient exhibits.

In the pain arena we have several specialities and professions involved. Apart from those mentioned above (including mine), we also have anaesthetists, pain physicians, physiotherapists, psychologists, osteopaths and chiropractors for starters. We all have different educational backgrounds and a tendency to use very different professional vocabularies. Of particular difficulty is the system of classification that psychiatrists have adopted. This is the Diagnostic & Statistical Manual of Mental Disorders (DSM), first published by the American Psychiatric Association in 1954, with the last revision, DSM-IV, in 1994. The next full revision is due to be launched in May 2013. During these two decades there have been major changes in medical thinking and there remains the

considerable difference between psychiatric practice in the USA and Europe. What is certain is that there will be significant changes to the classification in 2013 and yet the signs and symptoms of the individual patient will not have changed. However, courts have shown considerable reliance on DSM-IV. Fibromyalgia is an interesting example of a diagnosis that has gradually grown in its scope and become a veritable dustbin of weird, unconnected, symptoms (but not signs). Originally it was described as a triad of defined trigger spots, sleep disturbance and muscular pain. It was seen as a physiological (or psychological, depending on your background) reaction to pain disrupting delta wave and rapid eye movement sleep. Most authorities agreed that fibromyalgia was not a disease or illness. As such it is an easily treatable condition, especially if the cause of the initiating pain was dealt with. Pacing, pain relief and improvement in sleep hygiene, introduced as soon as the symptoms appear, will inevitably lead to resolution. However, thanks to the internet and the litigation process, we are now faced with a bewildering range of symptoms complained of by claimants, all attributed to the index incident.

There is a big industry out there jumping on the taxonomy bandwagon. Over recent years it started with whiplash, moved onto fibromyalgia and now to complex regional pain syndrome. All three of these conditions exist as defined. There is, however, no scientific excuse to add a plethora of non-specific, non-associated symptoms which pop up on the internet. Because of this sloppy thinking we are now in the position that all three conditions have led to substantial claims and costs to the innocent motorist or employer. We have all seen genuine claimants with these conditions, the majority of whom have been compensated with modest sums. We have also all seen claimants who consciously or unconsciously exaggerate their symptoms and loss of amenity, often encouraged by less than scrupulous claims companies. I am dealing with one claim at the moment in which it suggested that the cost of future dog walking would be £220,000! We need to look at what happens to patients outside the litigation process. All three of these conditions are treatable and for the most part self-limiting.

That does not mean that all patients will improve but there has to be very good evidence that the claimant is genuine for a claim to be justified.

We need to go back to basics. The issues are: 1. Does the claimant have symptoms that are attributable to the 1. index incident or failure of duty of care by the defendant?

2. Is there clear evidence of continuity?

3. Is there clear loss of amenity?

4. Is there any other explanation for the symptoms?

5. What is the prognosis?

We should be less concerned about artificially squeezing claimants into little diagnostic boxes than weeding out the unworthy claimant from the deserving. We should certainly resist an inexorable rise in claims relating to disorders that are artificial and which do not mirror what is seen in normal clinical practice. q www.yourexpertwitness.co.uk

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How to make sure a surgeon is operating on the right patient and in the right place

by MR IAN FORSTER MBBS FRCS FRCS(Ed), Consultant Orthopaedic Surgeon n Wrong site surgery is, despite ever changing safeguards, a major complication which is devastating for the patient, the family and the surgeon. There were 40 claims in England in 2005 which, considering the number of orthopaedic and other operations that are performed, is reassuringly small. However, despite an increasing number of checks prior to surgery these claims have not disappeared as yet.

The first stage of any operation is to obtain consent. This is not only just before the operation but is ongoing from the first out-patient consultation. Clearly a thorough knowledge of all procedures the surgeon performs is essential. The surgeon needs to know how to do the operation and when to do the operation but, most importantly, when not to do the operation! It’s important to be sure the patients know what they are letting themselves in for and that it is right for them. At the first consultation, when an operation is recommended, the surgeon needs to go into all the benefits and pitfalls involved. This helps the patient make up their own mind. If there is any doubt my practice is to arrange another appointment for further discussion.

There is a further opportunity to discuss matters at the pre-operative assessment clinic when patients coming for major surgery are checked as to their medical state. At that time it is customary to discuss, in detail, everything the patient will undergo and, again, the possible complications and the prevention of those complications.

Finally, the surgeon formally explains the procedure in great detail on the day of the operation. Consent forms these days have expanded to include details of almost everything that is said. The patient is expected to be taken through each statement before signing and is given his own copy. All common and major complications, including the outcome after such a complication, should be discussed and written on the form. If a complication is missed, and then happens, then this could be construed as negligence.

If the patient does not understand what is being said it is not now possible to get a relative to sign for him, although this used to be the practice years ago. These days two competent surgeons need to agree that the procedure is necessary and then the operation can happen.

This does not mean that the family cannot be involved in the decision and it is important that they are fully informed.

Despite this, in disputes as to whether the correct consent has been taken, my experience is that solicitors don’t usually advance a case on

this alone. Clearly when this happens it is one person’s word against another and is a very grey area.

At the time of consent it is usual for the surgeon (or a suitably trained deputy) to mark the limb. In other branches of surgery marking is less usual but in orthopaedics it is obligatory. The arrow used must be visible in the operative field. Some surgeons write the nature of operation and sign it. It should be done with a permanent marker.

On leaving the ward a check list is completed which includes both marking and consent. Patients do not leave the ward without this check list being correctly filled in. In the theatre the form should be checked again and also in the anaesthetic room. When the patient is wheeled into theatre there is a specific ‘time-out’ before even prepping the area. The notes and X-rays are checked, the check list itself and the wrist band of the patient. All patients have a wrist band whilst in hospital which includes their name, their number and any allergies.

You would have thought that with all these checks wrong site surgery would not happen but unfortunately this is not the case.

Because there are so many checks it needs a number of people to be ‘off the ball’ for a mistake to occur. Clearly any such mistake leads to negligence claims which are indefensible.

In addition, such a mistake will usually be followed by a detailed enquiry by the hospital itself to find out what exactly had gone wrong and its future prevention.

Disputes about whether sufficient information has been given to allow proper consent are always difficult. In truth, the enquiry can be so long after the event that the memory of both patient and surgeon may not be perfect. What is written on the consent form helps but doesn’t show exactly what was said, only the subjects discussed.

Wrong site surgery, however, is straightforward and this is unlikely to be defended. q www.yourexpertwitness.co.uk

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Sports and leisure experts combine O The Royal Society for the Prevention of Accidents (RoSPA) and the FIA (Fitness Industry Association) have entered into a new partnership aimed at improving the quality and safety of the sport and physical activity industry. The two organisations will work together on policy, industry initiatives, training programmes and campaigns.

RoSPA is recognised as a leader in the production of accident investigation and expert witness reports for both play and sporting injuries, and has a subsidiary company, RoSPA Playsafety Ltd, that specialises in the sector.

FIA members will benefit from access to RoSPA services, including a telephone helpline giving free initial advice on water and leisure health and safety issues, and preferential rates on RoSPA consultancy, membership and playground inspections.

They will also be able to report any incidents or near-misses for inclusion in the Water Incident Database (WAID), which is hosted by RoSPA on behalf of the National Water Safety Forum (NWSF).

David Rushton, RoSPA’s head of education and leisure, said: “RoSPA is committed to the guiding principle that sport and physical activity should be as safe as necessary, not as safe as possible.

A quest for absolute safety in this sphere would surely erode many of the benefits to be gained from maintaining an active lifestyle. We are delighted, therefore, to be partnering with the FIA – an organisation that shares our commitment to promoting quality in the industry and ‘prevention in proportion’.

“Working together, we will be able to provide thousands of health and fitness operators and suppliers, in both the public and private sectors, with the information and advice they need to take a balanced approach to health and safety. We hope this will raise standards of health and safety management across the industry, thus reducing unnecessary injuries, while also promoting the many benefits of physical activity.”

David Stalker, the FIA’s chief executive officer, said: “One of the FIA’s core aims has always been to improve quality and standards across the physical activity sector and to help our members prevent accidents in their facilities. Our Code of Practice and Health Commitment Statement have gone a long way to

to promote safety Image courtesy of Freeimages.co.uk encouraging a vigorous but balanced approach to health and safety in leisure management.

“This partnership builds upon our commitment to health and safety and offers

FIA members access to key resources such as the RoSPA helpline, helping those working at the coalface of the sector to keep updated and access support when they need it.” R

Lords launches Olympic legacy sports medicine inquiry O The House of Lords Science and Technology Committee has launched a short inquiry into sports and exercise science and medicine. It will consider how the legacy of the London 2012 Olympic and Paralympic Games can be used to improve understanding of the benefits exercise can provide both for the wider public and in treating a wide range of chronic conditions.

In a statement the committee noted that the Government spend approximately £100m a year on high performance sport and recently invested £30m in the establishment of a UK National Centre of Excellence for Sports and Exercise Medicine. Their Lordships will explore how robust this science is and how lessons learnt from the study of elite athletes can be applied to improve the health of the population generally.

Research suggests that increased exercise can provide significant health benefits for a range of health conditions, from heart disease and diabetes to mental health problems such as depression. However, the committee is concerned that medical practitioners may not be adequately trained and resourced to understand how to include increased exercise in treatment programmes and will look at how the Olympics can be used to deliver wider access to sports medicine.

The committee started taking oral evidence on 12 June with officials from the Department of Health and the Department for Culture, Media and Sport giving evidence. Over the course of the inquiry the committee also expect to hear from representatives of the NHS and UK Sport as well as other experts.

Commenting, Lord Krebs, Chairman of the Committee, said: “There is significant interest in the Olympics right across the country and the Government have committed to providing a lasting legacy from the Games. The committee will consider how the significant sums of money that are being invested in improving the performance of elite athletes in a range of sports can provide transferable knowledge that can be of benefit to the whole population.

“There is an ever-growing body of evidence showing that increasing the amount of exercise people take can be of huge benefit in treating a wide range of chronic conditions.

However, we are not convinced that health professionals currently have the skills or support to prescribe appropriate training regimes for their patients.

“It is widely agreed that the London Olympics must deliver a legacy. Our inquiry will seek to establish how the Government can ensure that improved public health is a significant part of that legacy.” R

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