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contents IN THIS ISSUE 4 5 5 6 7 33
Opening Statement Commercial disputes set for a resolution revolution Tougher sentences for dangerous dog owners Study finds need for work-related driving standard Berks forecasters first to predict Sandy landfall British politicians and democracy
PLANNING & CONSTRUCTION 9
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Legionella control – understanding your statutory responsibilities Property sites to be exempted from Estate Agents Act Act enables communities to bid for local assets Woodexperts integral to windmill’s longevity
FIREARMS 14
Raising standards in firearms forensic science
FINANCIAL 16 17 19 21 22 22
How to get the most from your expert Final conviction concludes ‘roundabout scam’ investigation Forensic accountancy – 50 shades of grey? At least When is renting substandard housing a crime? Civil recovery lawyers wanted Forensic accountants expect cuts in appearances in family courts
9 INHERITANCE 23 23
LSB: will-writing should be ‘reserved’ Fraudsters target potential heirs
HANDWRITING 25
The writing’s on the wall
CONFERENCES & EXHIBITIONS 27 27
There is more to conferencing than the capital Legal roadshow gets ready for 2013 Birmingham kick-off
TRANSLATION & INTERPRETATION 29
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Speaking in tongues
SCOTTISH ISSUES 31 31
Scottish lawyers welcome agreement on independence vote Scottish legal expertise promoted in Dublin
DIGITAL FORENSICS 32 32
APIL 34 35
Apple uses ‘apology’ to praise its product Law firm’s data just got bigger
How housing expertise can make a big difference in personal injury cases Accreditation scheme provides peace of mind
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EXPERT CLASSIFIED 69 73
Expert witness classified listings Medico-legal classified listings
MEDICAL ISSUES THREAT OF LITIGATION 37 39
Threat of litigation against medics increasing Discuss concerns, and write it down!
ASSESSING PSYCHOLOGICAL TRAUMA 41 43 44 45 48 49
Assessing psychological trauma: current issues Traumatic brain injury and clinical neuropsychology Keeping ahead of the curve Why an ‘incident at sea’ can be particularly traumatic The impact of trauma When can you commit an offence but not contravene the law?
GYNAECOLOGY 51
NHS Litigation Authority reflects on a decade of maternity claims
CARDIOLOGY 57
Medico-legal pitfalls in interventional cardiology
DENTISTRY 59 60 61
Getting to the root of the problem What the dental expert needs Bite Mark Analysis – does it have a future?
UROLOGY 63
Cauda Equina Syndrome – what is the role of the urologist?
OPHTHALMOLOGY 65
Surgical revolution leads to more cataract claims
54 54 55
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ORTHOPAEDICS 67
Hips and their problems
SPEECH & LANGUAGE THERAPY 53
OUR EASY-TO-USE ONLINE DIRECTORY PUTS YOU A MOUSE’S CLICK AWAY FROM NEW CLIENTS
Addressing communication problems can cut re-offending Awards celebrate campaigners Therapy forms vital part of rehabilitation Case Studies
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Opening Statement O The row over the contract to provide translation and interpreting services doesn’t look like going away any time soon. There have been claims and counter-claims about the performances of Applied Language Services and later Capita. The House of Commons Justice Committee is currently hearing evidence on the issue, including claims of intimidation and assaults by Applied’s former CEO Gavin Wheeldon. Making oneself understood is key to obtaining justice in any civilised society, so there is an absolute need to have competent translators available. The same is true where there is an observed problem with speech and language capacity. The Royal College of Speech and Language Therapists has pointed out that up to 70% of young people in the criminal justice system suffer from such problems, which can lead to repeat offending. The under-availability of therapists is a major problem, despite authorities denying that fact.
Lawyers in corporate practice have recently been criticised for failing to bother with the first in a series of conferences by the Law Society because it is was going to be in Wales – unlike the throngs attending the various events held up and down the country by the SOLICITORS group. Next year’s series kicks off in Birmingham in February and Your Expert Witness will be there to bring the many qualities of this publication to the attention of those few legal personages not yet familiar with it.
Not 10 miles from the offices of Your Expert Witness is the suburb of Cheadle. It was on a roundabout there that a gang of ‘crash for cash’ villains inveigled unsuspecting motorists into collisions, which were then the subject of insurance claims. The jailing of a claims company manager has completed a successful series of prosecutions aided by the Insurance Fraud Bureau. The scam was brought to light when workers at an office building at the side of the roundabout noticed there seemed to be a large number of accidents there, involving the same man – the office building is home to, among others, an insurance company!
Finally, the ‘will they; won’t they’ story of the Scottish independence referendum. Mr Salmon’s claim to have sought advice on the issue of an independent Scotland’s euro opt-out has been making the news, but the real issue is whether the Prime Minister’s gamble that the Scots will reject the idea has come off. We’ll have to wait a couple of years to find out.
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Commercial disputes Tougher sentences for set for a resolution dangerous dog owners revolution n Former Lord Chancellor Lord Falconer has predicted a surge in the use of mediation rather than litigation in commercial disputes and other cases. He was delivering the keynote speech at the Chartered Institute of Arbitration’s mediation symposium on 25 October. Falconer said that ‘mediation is the future’ and will become more widespread, especially for commercial, employment and media cases where the adversarial process is ‘too expensive, too risky and too dangerous’. But Falconer questioned whether mediation could really take off if mediators continued to practise as lawyers as well. “It’s not that easy to move from being an adversarial lawyer on one day of the week to a mediator on another. It is not just about training, but a cast of mind,” he said. His speech follows comments from the vice-chair of the Civil Mediation Panel, Bill Wood QC, that aggression by lawyers could scupper clients’ chances of success in mediation. He told an event organised by mediation firm JAMS International Linklaters that he had experienced cases where the two lawyers involved were more angry than the clients. He said that some litigators still seek to obstruct mediation. Other ways in which commercial disputes, such as product quality and safety issues, are resolved include the rolling out of the process of taking ‘concurrent evidence’ from experts – a process known as ‘hot tubbing’. The process was piloted in the Technology & Construction and Mercantile Courts in Manchester earlier in the year. q
n From 20 August, courts in England and Wales have adopted a tougher approach to the way those convicted of dangerous dog offences are treated, as a new sentencing guideline comes into effect. The guideline was published on 15 May by the Sentencing Council and is now in force in all courts in England and Wales. The sentencing ranges set out by the guideline mark an increase in sentencing levels from previous practice. The top of the sentencing range for owners allowing their dog to be dangerously out of control and injuring someone has been set at 18 months custody – in order to encourage the courts to use more severe sentences when it would be appropriate to do so. Previously, sentences have tended to go up to approximately 12 months. The top of the sentencing range for possession of a prohibited dog has been set at the legal maximum of six months custody to encourage courts to use the full range of their sentencing powers for the most serious cases. It means more offenders will face jail sentences, more will get community orders and fewer will receive discharges. The guideline will also help courts make the best use of their powers, so that irresponsible owners who put the public at risk can be banned from keeping dogs, genuinely dangerous dogs can be put down and compensation can be paid to victims. q
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Study finds need for work-related driving standard n A national standard for the management of work-related road risk would be welcomed by businesses, and should include advice about the processes and interventions they should be using to manage and lower their risk, according to new research by the Transport Research Laboratory. The research, jointly funded by the Metropolitan Police Service and the Association of Chief Police Officers, examined the opinions of various stakeholders in the work-related road safety field, such as trade associations, charities and road safety groups, and fleet managers. It was designed to address two key questions: first, what might a national standard for the management of work-related road risk look like and second, what role might the police play in its development and use. Dr Shaun Helman, who led the research, said: “For some time we have known that work-related road collisions represent a serious injury burden, with at least around a fifth, and perhaps as many as a third, of injuries from road collisions in Great Britain involving someone who is driving for work at the time. There is no standard approach to managing this risk and businesses are inundated with a multitude of advice from different suppliers and stakeholders, making it difficult for anyone to be sure what they should be doing.�
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Image courtesy of Transport Research Laboratory
One of the key general findings of the research was that the management of work-related road risk is widely perceived to be lagging behind the management of health and safety risk in the workplace. “The general perception is that, despite a great deal of effort by some
stakeholders and businesses over the last decade, in the majority of organisations work-related road risk is simply not being managed in the way it should be,” said Dr Helman. The research highlighted the need for any national standard to be simple and evidence-based. ‘Baseline’ features suggested by stakeholders for what the standard should require include a simple-to-follow risk management system based on the ‘plan, do, check, act’ model, licence checks for drivers and the collection of data (for example incidents and near misses) to monitor performance. In addition, the report suggests that a national standard should encourage businesses to focus on reducing the extent to which employees are asked to drive when tired, when distracted or under time pressure. The report also recommends that the police play a role with other organisations in developing a national standard, and that this could be
achieved either through encouraging adoption of a forthcoming international standard or through developing a stand-alone solution. Finally, the research suggests that the police might find ways to ensure that businesses find out about traffic offences committed by employees, as such data can be used to help understand levels of risk. Chief Superintendent David Snelling, who represents the Metropolitan Police and ACPO Roads Policing Business Area, said: “The police welcome the findings of this report and will seek to work with others to develop a national standard for those driving at work. This will enable individuals and companies to do all that they can to prevent road traffic collisions occurring by understanding what their responsibilities are. For those who deliberately flout safety provisions, a national standard will enable the authorities to take appropriate enforcement action.” R
Berks forecasters first to predict Sandy landfall O On 23 October the European Centre for Medium-range Weather Forecasts in Reading issued a warning that tropical storm Sandy, then in the Caribbean off Central America, would make landfall on the Eastern Seaboard of the United States. That forecast has proved to be the cause of a furore in light of subsequent events. Forecasters in the US failed to realise the impending impact of the ‘Halloween Frankenstorm’ for several days and, indeed, as late as 27 October the National Hurricane Center issued a statement to the effect that, as Sandy was NOT a tropical storm in the technical sense there would be no advisories issued. The statement read: “Sometime prior to making landfall, Hurricane Sandy is expected to lose its characteristics as a tropical cyclone and take on the structure of a wintertime low-pressure area. Because the National Hurricane Center only issues advisories on tropical cyclones, there will be changes in the flow of information coming out of the NWS when this transition occurs.” A report in USA Today on 30 October summed up the discomfort felt by US meteorologists. “It’s embarrassing, we should have the best forecasts on the planet. And it has an economic cost,” the publication quotes meteorologist Cliff Mass of the University of Washington in Seattle as saying. According to USA Today, the ECMWF prediction was made on more powerful computers and ran on higher-resolution models of the weather that simulated the future over longer time periods than the one employed by the federal National Weather Service. The European model is widely seen as the best at predicting hurricanes, according to Mass and others. AccuWeather's Mike Smith was fulsome in his praise of the Reading centre. “But the bottom line is that forecasters nailed this storm days ahead of its arrival,” he said. “The people behind Europe’s model should receive a Nobel Prize in physics – this was that powerful a moment in weather science.” R
Image courtesy of NASA
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Legionella control Understanding your statutory responsibilities by GERRY BRANNIGAN BEng(Hons) CEng MCIBSE MASHRAE Head of Buildings & Projects at Cadogans n In the building services engineering industry it’s very difficult to do something wrong which results in a death – possibly making someone too hot or too cold, using too much energy, poor indoor air quality, the lighting can be too bright or too dark, ventilation systems are too noisy or cause drafts – but rarely something which could result in a fatality, with the obvious exception of electrics. However, from my early days as a graduate design engineer the inherent risks associated with water services systems have always been top of the agenda and there should never be a compromise. While most members of the public associate Legionnaires’ disease with the major outbreaks which grab media attention, the Health Protection Agency believe that 8,000 to 10,000 people contract the disease each year. Showers and spa baths are the number one causes of Legionellosis in the UK. In 12% of the cases the disease will prove fatal. This is therefore a significant disease. The problem can occur through poor initial design or through lack of maintenance and incorrect management procedures. The Health and Safety Executive believes that the disease is preventable, providing that water systems are properly risk assessed and controlled.
What is Legionnaires’ disease? Firstly, Legionnaires’ Disease is nothing to do with the French Foreign Legion. It was named after the first recorded outbreak in 1976 which took the lives of 34 and infected 221 American Legion conference delegates – reportedly including 5 people walking past the hotel! Legionellosis is a group of diseases which includes Legionnaire’s Disease, Pontiac fever and Lochgoilhead fever. There are over 50 different types of legionella but most of the major outbreaks are caused by Legionella Pneumophila Sero Group 1. It is contracted when water borne bacteria enter a person’s lungs via water aerosol. It can also be aspirated into the lung from the water system in a dentist’s chair. The symptoms are similar to those of flu – high temperature, fever and chills, cough, muscle pains and headache. In a severe case, there may also be pneumonia, and occasionally diarrhoea, as well as signs of mental confusion. Those with compromised immune systems are most susceptible to serious illness and complications from the disease.
Where is it found and how is it controlled? Legionella bacteria will only multiply in certain conditions and it is therefore essential that a maintenance and management regime is put in place which ensures bacteria are prevented from having the conditions to thrive. The main conditions for growth of Legionella bacteria include: • water stored at temperatures between 20ºC and 50ºC • storage tanks or vessels which are not clean and where sludge, biofilm • or deposits are allowed to form. • any dead legs of pipework where water doesn’t flow regularly. Even where a system complies in general, minimum temperatures may not be maintained during periods of peak flow, for example in a hotel at 8 a.m. when everyone is having a shower. High risk buildings which have equipment where water can easily release vapour include cooling towers, spa pools, humidifiers, air washers, emergency showers and indoor ornamental fountains. Typical measures to control legionella include regular flushing of
the system, maintenance of temperatures below 20ºC for cold water and above 62ºC for hot water storage tanks (calorifiers). This temperature is intended to ensure that water in the hot supply pipework does not cool below 50ºC. Suitable maintenance and management regimes are detailed in the HSE Approved Code of Practice L8, which is due to be updated shortly. www.hse. gov.uk/legionnaires/index.htm
Who is responsible and what do they need to do? Any piece of equipment, distribution pipework, hot or cold water storage vessel or anything which contains or conveys water should be considered a risk. In line with the Health and Safety at Work Act 1974 (HSWA) and the Control of Substances Hazardous to Health Regulations 2002 (COSHH) all employers, or anyone in control of buildings, including landlords, has a responsibility to ensure that the risk from exposure to Legionella in premises is properly controlled. Every organisation with more than 5 employees must have a written risk assessment undertaken in accordance with their statutory duties. Often landlords or employers subcontract duties under the Act to a specialist water management or facilities management company. However, the responsibility cannot be passed down under the law and the designated ‘Statutory Duty Holder’ is ultimately responsible for their building. Therefore they must understand how to: • identify and assess sources of risk • manage any risks • prevent or control any risks • keep the correct records • carry out any other duties they may have
Key facts • Anyone in control of, or who owns, buildings has a responsibility to • ensure that the risk from exposure to Legionella in premises is properly • controlled. • Every employer with more than 5 employees has a statutory duty • to prepare a written risk assessment of their facilities, and act on it as • necessary. • Any equipment which stores, conveys or uses water should be assessed • for risk. Spray taps, showers and outlets should all be regularly checked • in accordance with the building’s risk assessment. q • Gerry Brannigan leads the Buildings & Projects business at Cadogans. Cadogans accepts instructions relating to engineering technical disputes and health and safety matters, large and small, within the United Kingdom and abroad. Mr Brannigan’s specialisation is all aspects of building services engineering design, installation, operation and facilities management. For details of Cadogans’ full range of services and specialist expertise please visit www.cadogans. com. Follow us on LinkedIn for updates and specialist case studies. www.yourexpertwitness.co.uk
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Property sites to be exempted from Estate Agents Act n Businesses hosting private property sales advertisements without getting involved in the sales process will no longer be subject to various regulations aimed at estate agents, the Government has announced. In response to the consultation on amending the Estate Agents Act to encourage new business models, the Department for Business Innovation and Skills (BIS) has confirmed plans to exempt intermediary agents which help homeowners privately advertise and sell their houses from the Estate Agents Act 1979 (EAA). Government will also repeal the Property Misdescriptions Act 1991 (PMA), which currently requires these businesses to check the accuracy of advertised property details. The PMA has largely been superseded by the Consumer Protection from Unfair Trading Regulations and the Business Protection from Misleading Advertising Regulations, which can be applied more flexibly and have a wider range of enforcement measures and protections.
Consumer Affairs Minister Jo Swinson (pictured) said: “A flourishing housing market is hugely important to the economy, and one of the ways to boost it is to cut through bureaucracy and allow people to buy and sell more easily. This is why we are proposing to change the rules so that businesses that facilitate private property sales aren’t caught out by the regulations for estate agents. “These intermediaries help buyers and sellers contact each other at a low cost, but don’t engage in other estate agent activities, so it’s unfair to expect them to go out and check all the property details of all the sellers on their websites. Reducing the regulations for these businesses will open up the market and increase choices for consumers looking to save costs when buying or selling a property. “Selling privately can be a useful and cost efficient method, but consumers should always make sure they are well informed about the different levels of protection offered
by these businesses compared to traditional estate agents.” The changes arise from the Disruptive Business Models theme of the Government’s Red Tape Challenge. The Government will bring forward an amendment as soon as the parliamentary timetable allows. q
Act enables communities to bid for local assets n The Assets of Community Value (England) Regulations came into force on 21 September. According to the Law Society, the regulations implement the assets of community value scheme set out in part 5 of the Localism Act 2011. They cover the procedure for listing land at the local authority that is of community value and the procedure for reviewing and appealing decisions to list land. They also set out what land cannot be listed as being of community value and contain provisions on compensation and community interest groups. The regulations apply to England only. The scheme requires a local authority to maintain a list of buildings and other land in its area which are of community value. The owner of listed land is prohibited from disposing (as defined in the legislation) of that land unless certain conditions are met. This includes a moratorium on disposal for up to six months. Assets can be nominated by community groups and, provided the nomination is accepted, the group will be given time to come up with a bid for the asset when they are sold. In its Plain English Guide to the Localism Act, the Department of Communities and Local Government says: “Every town, village or neighbourhood is home to buildings or amenities that play a vital role in local life. They might include community centres, libraries, swimming pools, village shops, markets or pubs. Local life would not be the same without them, and if they are closed or sold into private use, it can be a real loss to the community. “In many places across the country, when local amenities have been threatened with sale or closure, community groups have taken them over. In some cases, however, community groups who have attempted to take assets over have faced significant challenges. They often
need more time to organise a bid and raise money than the private enterprises bidding against them.” Solicitors can find out whether land is listed as an asset of community value by searching the local land charges register. q
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Woodexperts integral to windmill’s longevity n Skidby Windmill, situated near to Beverley in the East Riding of Yorkshire, is said to be England’s most northerly working windmill and the only one north of the Humber. About 25 years ago, there was a near-fatal catastrophe when one of the sail beams broke off during milling, on a Bank Holiday afternoon, and crashed through the roof of the adjoining building – which was full of tourists! Luckily, no-one was hurt, but the local council who owned the Mill – at that time they were called Beverley Borough Council – approached Jim Coulson, director of Ripon based TFT Woodexperts, and asked him to immediately inspect the broken beam and then to initiate an ongoing Inspection Regime for the future. Jim immediately discovered that the sail beam was seriously rotten in the centre: and yet even the millwrights (who were charged with the normal maintenance of the mill) had failed to spot this particular rot, since the problem was largely internal to the timber and therefore not obvious on the surface of the beam. Every year (and also on a couple of special occasions since) someone from TFT Woodexperts has been commissioned to climb up the mill tower. They have then gone out onto the sail beams – generally at some time prior to the tourist season, before the May Bank Holiday – to check all of the beams for any tell-tale signs of rot, and to make necessary recommendations for re-painting,
repair or replacement. During the time that TFT Woodexperts have been involved with Skidby Windmill, their inspectors have discovered the likelihood of more rot in two further beams which the Council (now known as the East Riding of Yorkshire Council) then found the funds to replace, one at a time, over a 3-year period. On each occasion when that ‘suspect’ beam was removed by the millwrights and then cut open, a large rot patch was found in exactly the spot where the TFT inspector had said it would be! On one of the ‘special occasion’ inspections TFT Woodexperts were asked to report specifically on the fantail structure of the mill (that’s the bit which steers the main sails into the wind). They then recommended some immediate repairs, to be followed by a wholesale replacement of some of the key crossbeams, as soon as the funds could be found. The reason for these urgent repairs was because of many years of temporary ‘bodging’ by various people – such as adding lead flashings in inappropriate places – that had created some serious water-traps and had thus threatened the integrity of the 12” x 12” timber beams – and these were holding up several tons of wrought iron and other essential machinery, some 60 feet above the car park! Happily these days, Skidby Windmill is fully up and running – much to the delight of the tourists who visit East Yorkshire every season – and TFT’s inspectors know, from first-hand experience, that it produces some of the best wholemeal flour in the north of England! q www.yourexpertwitness.co.uk
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Raising standards in firearms forensic science by Mark Mastaglio, Director, The Forensic Firearms Consultancy O Never has the provision of forensic science to the Criminal Justice System been so fragmented and subject to so much police control. The Government has openly embraced a laissez-faire, market-led approach whereby the prosecution either buys its forensic science from commercial providers or relies upon policecarried out tests and interpretation. This has had a profound effect on the way gun crime related prosecution evidence is generated. Cuts to police budgets have led the police to think that they can extend their investigative remit and become generators and evaluators of forensic evidence. Virtually all police forces in England and Wales now rely on in-house classification of firearms. Only when they think they lack the expertise do they spend money on a commercial forensic science provider. This approach has led to the forensic science process being split into commodities: police officers tend to think of forensic science as a set of tests. However the real skill of the forensic scientist is in putting the results of these tests in context and explaining what they mean. Additionally when it comes to the interpretation of firearms legislation, which is by no means straightforward, the police do not always understand the full implications of statute and case law. With evidence types such as fibres, DNA, paint, glass and gunshot residue (GSR) the police now send a multitude of sub-samples to different commercial forensic labs, the result being that no one provider sees the whole picture. Increasingly it comes down to the police controlling the evaluative phase. Inevitably one of the consequences of a police controlled evaluative system is possible institutional prosecution bias. Following the Government’s closure of the Forensic Science Service (FSS) the growth of police in-house sourcing of forensic science has mushroomed. When the FSS closed in April 2012, the Forensic Firearms Consultancy (FFC) Ltd – www. forensicfirearmsconsultancy.com – was formed by the two most senior FSS gun crime scientists, Mark Mastaglio and Angela Shaw. These scientists have over 30 years experience. FFC works primarily, but not exclusively, for the defence and has prepared numerous reports that have highlighted the shortcomings of how the police generate and interpret their gun crime forensic science. One such report highlighted the lack of robust interpretation of GSR results where the police scientists had not evaluated the possible contamination issues in the context of the case. The FFC input contributed to the acquittal of the defendant who was on trial for murder. This trial resulted in an investigation by the Home Office Forensic Science Regulator. What FFC scientists have discovered is that most police forces are using their own armourers to classify firearms in facilities that are not accredited and which use equipment not traceable to any national standard. The situation has arisen where the police are allowed to use facilities and practices that would not be allowed for any commercial forensic science provider. It has also been noted that the use of police armourers who are usually not trained in trace evidence recovery can impair the effectiveness of a cogent forensic strategy being developed with the loss or compromising of valuable trace evidence such as DNA, fibres or GSR. All these evidence types could be instrumental in the acquittal or conviction of a suspect. FFC scientists have also co-founded Principal Forensic Services (PFS) Ltd. – www. principalforensicservices.com – with the goal of providing a one stop shop for solicitors who may require experts from all the forensic science disciplines. PFS is the most concentrated repository of world renowned experts in the UK and represents a bulwark against falling prosecution standards and potential police bias. Firearms crime is a serious issue for society and convictions carry heavy sentences. The unlawful possession of a prohibited weapon, as defined by section 5(1)(aba) of Forensic Firearms Consultancy (FFC) Ltd directors the amended Firearms Act 1968, is an offence of strict liability and carries a mandatory Mark Mastaglio (top) and Angela Shaw minimum sentence of 5 years imprisonment. However an in-depth knowledge of both the legislation and the forensic science issues can lead to the prosecution evidence being successfully challenged. For example, the court may accept that the gun was an antique as defined by section 58 of the 1968 Act or was of historical or technical interest as laid down in section 7 of the Firearms (Amendment) Act 1997. The identification of component parts, which in themselves can be classified as firearms, can be of vital
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importance. Does the possession, for example, of a bolt from an M16 or a pump action shotgun mean an automatic minimum 5 year sentence? No it doesn’t! A firearms forensic scientist who knows the law inside out can readily identify this. A relatively recent change in the legislation has banned realistic imitations from being imported or sold in the UK. A significant proportion of the guns used in crime have been converted from blank firing guns, however in order to be able to classify such a gun as a firearm one must be confident it is capable of causing more than trivial injury from which death would result. This needs a thorough knowledge of wound ballistics and the ability to interpret test firings using tissue simulant. Some of the cases investigated by FFC scientists show that the police have not looked into this basic need before classifying weapons. Air guns regularly feature in cases where we have been instructed. The prosecution work has usually been carried out by the police using procedures and equipment which has not been accredited and calibrated to acceptable standards. Such evidence does not stand up to close scrutiny. Firearms forensic science is a dynamic discipline with the types of firearms, the legislation and case law frequently being updated. The latter being illustrated by the Appeal Court ruling in the case of of R v Bewley [2012] EWCA Crim 1457 where the definition of what actually constitutes a firearm was clarified. We have spent over three decades trying to raise scientific standards with regards to firearms related forensic science. It is now unfortunate to see the fragmentation and commensurate loss of the UK’s forensic science knowledge base. With the creation of FFC we will strive to serve the needs of all who require impartial firearms forensic science advice. q
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How to get the most from your expert by VANESSA WINSPEARE of MJN Forensics n Regardless of the discipline, an expert has an overriding duty to the court. In carrying out their role they perform a balancing act – an expert has to be robust but at the same time they should not be
seen to be a ‘hired gun’. A good expert does not necessarily win the case for you but a bad expert can lose you the case. As a case can turn on expert evidence, selecting the right expert for both the case
and to work as part of your team is very important. The expert that you choose should have the necessary skills to provide you with support at every stage of the process from the initial report to written questions, experts meeting and giving evidence at trial. Most experts have prepared written reports but you may wish to ask if they have experience of all the possible stages of the case. When it comes to the final selection, personal experience and recommendations from those that have used an expert are a reliable method, without these you can use the many expert directories. Once you have selected your expert the next step is to instruct them. The instructions should contain all the relevant details regarding the case and especially any points that you wish the expert to include in the report such as, for example, a retirement age of 60. You should also set out any deadlines for provision of the experts report, expert meetings etc. This will ensure that the expert has a clear understanding of their role from the outset. q • Vanessa Winspeare heads the forensic accounting team at MJN Forensics and has specialised in this field since 1995. She has given evidence a number of times in the High Court and also in various County Courts.
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Final conviction concludes ‘roundabout scam’ investigation n The head of an accident management company who processed fraudulent insurance claims was jailed for 21 months at Manchester Crown Court on 11 October. The sentencing of Asif Mallu of Bolton, along with an order to repay £7,250, concludes one of the country's biggest and most successful investigations into a ‘crash for cash’ scam, according a release issued by the Insurance Fraud Bureau (IFB). Mallu ran 24/7 Direct Claims Ltd, a company which managed insurance claims. He organised 10 fraudulent claims between May and December 2005 following collisions deliberately caused by a man called Mohammed Patel, who was convicted in 2009, acting within an organised crime network. Patel admitted to being the driver in more than 90 forced collisions between 2005 and 2008, all of which led to exaggerated and fraudulent insurance claims. In 2005, workers at an office block on a roundabout in Cheadle, Cheshire, became suspicious at the alarming regularity with which collisions were taking place at the same spot on the roundabout. They noticed the collisions were always at low speed, and
often, the same man was driving. Experts at AXA insurance, one of the companies affected by the scam, investigated a number of the claims and in January 2008, the findings were presented to Greater Manchester Police. The subsequent police investigation, Operation Contact – supported by the IFB – revealed that Patel deliberately caused collisions for whichever client was willing to give up his car keys and insurance details. He would be paid a fee while the claimants demanded compensation for personal injury, courtesy cars and legal fees at the expense of the other party's insurers. Chief Inspector Mark Dexter of Greater Manchester Police said: “This result sends a clear message to others that if they intend to defraud insurance companies the consequences are severe. We also want to make it clear that while insurance companies are victims, the innocent drivers involved in these collisions were made to feel as though they were in the wrong.” Phil Bird, Director of the Insurance Fraud Bureau, added: “Today's verdict concludes this landmark joint-operation between Greater Manchester Police and the IFB, sending
a clear deterrent message to fraudsters targeting the insurance industry - you will be caught, and you will face the consequences of a criminal record, heavy fines and imprisonment. “The IFB uses highly-sophisticated counterfraud software to interrogate over 130 million insurance records on a daily basis. As a result, IFB fraud analysts proactively uncover suspicious networks of people, policies and claims and work alongside police forces up and down the country to bring criminals to justice. “Honest policyholders, who ultimately pick up the bill for fraud through increased premiums, can report insurance fraudsters through the IFB's free and confidential Cheatline on 0800 422 0421, or report online at www.insurancefraudbureau.org.” q
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Forensic accountancy 50 shades of grey? At least by TOM ASLIN of Kingston Smith LLP n Accountancy is often portrayed as a dull profession, typified by bespectacled greyhaired gentlemen poring over dusty tax tomes. In the past, accountants have been lambasted by comics – in one Monty Python sketch an accountant declared ‘I’m a chartered accountant and consequently too boring to be of interest’. Whilst I would like to be able to debunk this myth, it’s fair to say that accountancy attracts a range of people as broad as that in any other profession. However, public perceptions of the accountancy profession have already changed considerably over the past decade, in no small part due to the high-profile events surrounding the Enron scandal and the collapse of Worldcom, as well as recent press and political comment in the UK on the morality of tax avoidance schemes sold by accountants to the very wealthy. Another area of accountancy that has attracted considerable interest in recent years is the discipline of forensic accounting, which encompasses a wide variety of work, and brings with it its own pressures and excitements.
Origins Forensic accountants have found employment since the time of the ancient Egyptians, when scribes spent their time accounting for the pharoahs’ gold and other assets. These scribes worked in the courts and were charged with fraud prevention and detection. Indeed, the word ‘forensic’ originally meant ‘pertaining to the court’, being derived from the Latin ‘forensis’, which itself means ‘of a forum, place of assembly’. The forensic accountant is therefore one who assists in any form of dispute in the context of judicial or quasi-judicial proceedings, often, but by no means always, in the role of expert witness. In more recent times, the word ‘forensic’ has now taken on a wider meaning, and is frequently used to describe a detailed and rigorous examination of data and documentation.
Forensic accountants today Forensic accountancy is now an established discipline in its own right, and all of the large accountancy firms have dedicated forensic teams, as do many of the mid-tier firms, and there are also a number of specialist ‘boutiques’.
The work of the modern forensic accountant is extremely varied and straddles a wide range of cases. Accountancy expert witnesses are appointed in criminal prosecutions, civil actions, arbitral tribunals and regulatory/disciplinary hearings, as well as forms of alternative dispute resolution such as mediation, arbitration and expert determination. In some cases a forensic assignment may require little or no traditional accountancy expertise. For example, in a recent case, I was instructed to analyse staff scheduling data in the context of a contractual dispute, in which one party alleged that the other had failed to deploy numbers of personnel in line with contractual requirements. This involved a forensic examination of the records, which required many techniques used frequently in forensic accounting, for example handling a large volume of data from several different sources, in different formats, carrying out ‘sense checks’ to identify and resolve internal conflicts in the data, and using a variety of analysis techniques to produce useful outputs and reliable, meaningful statistics. Having carried out the analysis we then needed to document our work and conclusions in a credible, independent report backed up by clear evidence, which the client could use as a starting point for negotiations with the other party. Perhaps the most readily-understood role of the forensic accountant is in fraud cases, in which civil or criminal courts need to understand complex accountancy issues or convoluted transactions and fund flows. However, it is important to remember that it is not the role of an accountancy expert witness to opine on whether or not an individual or group of individuals has committed fraud, regardless of any pressure the expert may come under to do so. Rather, this decision is the responsibility of the judge (or, in criminal cases, the jury), and being there to assist the judge is all very well, but making his findings for him is assistance he does not require! There are many more types of cases in which the forensic accountant can become
involved. Examples include business valuations, confiscation proceedings, professional negligence actions, theft and misappropriation of assets, loss of profits claims, contractual disputes, regulatory and disciplinary matters and personal injury cases. Indeed, any cases in which there is an accountancy element may require an expert opinion, and the nature of these cases can sometimes be surprising. In one example last year I was appointed in an extradition case, in which a former Soviet Bloc country was attempting to extradite an individual who, the state alleged, had perpetrated a fraud against the state bank. The issue in question was whether or not the evidence against him demonstrated, from an accountancy perspective, that it was possible for him to have subverted the internal controls of the bank and misappropriated the funds as alleged. In my view it did not, and as a result of this and other evidence the extradition application was refused. However there are relatively few cases where such a definitive answer can be given, and more often than not there will be a range of possible opinion on the matter in hand. Indeed, an expert’s conclusion can often be a range of figures and, if two experts prepare a Joint Statement for the court, the range can be still wider. Accountancy then, like any other profession, has many shades of grey and there is often room for a range of opinion, particularly in more complex cases. But has there been an increase in grey ties being spotted in the office? I couldn’t possibly comment. q • For more information please tel 020 7566 4000, email taslin@kingstonsmith.co.uk or visit www.kingstonsmith.co.uk/forensic. www.yourexpertwitness.co.uk
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When is renting substandard housing a crime? n Local authorities and the courts are getting tough with private landlords who flout the law by charging rents for substandard and overcrowded properties in multiple occupation (HMOs). In September Norwich City Council became the first local authority in the country to successfully prosecute a landlord under the Proceeds of Crime Act, which allows for gains made during illegal activity to be recovered. On 12 October Joseph Howman pleaded guilty to offences under the Houses in Multiple Occupation (England) Regulations 2006 and the Licence Conditions (part 2, Housing Act 2004). In addition to being fined £5,000, plus £135 victim surcharge and £8,500 costs, Mr Howman was ordered to pay £40,000 under the Proceeds of Crime Act (POCA) 2002. Ellen Spencer, private sector housing officer says: “We are pleased that the court recognised the serious nature of the offences and hope that this will send out a message that rogue landlords will not be tolerated in Norwich.” Last year Newham Council prosecuted a private landlord for breaching a ‘selective licensing regime’. At the time a confiscation order under the POCA was granted, but that decision was overturned on appeal in August. The Network of Independent Forensic Accountants reported the move by Newham as “using a law normally seen in fraud cases involving
forensic accountancy expert evidence”. It described the POCA as “originally aimed at stripping drug dealers of their ill-gotten gains.” According to Local Government Lawyer magazine: “The Court of Appeal…ruled that rental income from an unlicensed property did not in fact constitute a person’s benefit from the proceeds of crime, pursuant to section 76 (4) POCA 2002.” The appeal was allowed for four reasons: • An alternative statutory scheme for the recovery of rental income in the case of an offence against section 95(1) exists in section 97 of the Housing Act 2004 (Rent Repayment Orders). This scheme is incompatible with the regime under Part 2 of Proceeds of Crime Act as it creates the possibility of double recovery. • Section 96(3) of the Housing Act 2004 preserves a landlord’s ability to enforce the terms of a tenancy (including the payment of rent), despite the commission of an offence against section 95(1). Parliament could not have intended the collection of such rent to be a criminal act in itself. • The criminality of the offence therefore lies in failing to obtain a licence, not in collecting rent. • A confiscation order in these circumstances ‘operates as a fine’ However, the judgement also confirmed that the availability of confiscation orders in other regulatory cases is unaffected by the decision. q
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Civil recovery lawyers wanted
Forensic accountants expect cuts in appearances in family courts Lord Chief Justice Lord Judge
n Cheshire Police’s Economic Crime Unit is looking to collate information on law firms based in England and Wales who can offer a civil recovery service in relation to fraud cases. The unit has seen an increasing number of victims of fraud who come to it with complaints which for a number of reasons cannot be progressed. However, the cases have the potential for civil recovery and victims may want to take the matter further. The unit is looking to put together a policy within the police service whereby victims of fraud receive information about their options, including that of contacting law firms or service providers who can offer advice and potentially take on their cases. The unit plans to provide victims with a factsheet detailing the brief principles of civil recovery and a list of firms, detailing their criteria of areas covered and other information. Firms who are interested in being included on the list have been asked to send contact details to Cheshire Police at fraud@cheshire. pnn.police.uk.
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n The proposed limiting of the use of experts in family courts, part of the review by Mr Justice Ryder in July, will result in fewer forensic accountants being appointed, according to the Network of Independent Forensic Accountants. Following publication of the Ryder Report, the Lord Chief Justice Lord Judge warned that too many experts are being wastefully used, particularly in child proceedings. He says he wants to see hearings speeded up and a cutback on excessive delays. Lord Judge goes on to say that expert testimony is often ‘misused and overused’ and suggests that a single expert per case is often enough. Mr Justice Ryder’s report said: “The use of experts by the court deserves particular attention because of the time that it takes to undertake an expert assessment or analysis. The court must be adept to scrutinise whether the evidence that is necessary is already before the court and if it is, why further expert assessment or analysis is necessary on the same issues. To do otherwise, where no complaint about the methodology or factual basis of existing evidence is identifiable, suggests that the court is being asked to provide a multilayered alternative to judicial decision-making which is inappropriate.” q
They should state what sort of case brief or ‘package’ they would like to receive upon referral – case summary, potential assets, CCJs, intel checks etc – what criteria they would like to be categorised
under – regions covered, case size, international capabilities and specialised areas of business – and if possible a profile of what the firm has to offer in terms of civil recovery. q
LSB: will-writing should be ‘reserved’ n A final consultation by the Legal Services Board (LSB) into willwriting and estate administration comes to a close on 8 November. The consultation was launched on 27 September following publication by the board of its recommendations following an initial consultation earlier in the year. At that time the LSB proposed “to recommend to the Lord Chancellor that the list of ‘reserved activities’ in the legal sector be amended to include will-writing and estate administration, as well as probate”. The LSB concluded that: • Will-writing and estate administration activities should be reserved, predominantly on consumer protection grounds • New regulation must be proportionate, risk based and flexible so as to enable a variety of different types of providers to continue to provide services • Existing regulation should be improved and better targeted – which means that existing approved regulators and licensing authorities will need to be designated to regulate those newly reserved activities LSB chairman David Edmonds said: “The number and range of high-quality submissions we received demonstrates that there is professional, business and consumer support for proposals to regulate will-writing. Only a small number of respondents did not, or took diverging views, and we have paid particular attention to them. “The support shown, the research we have done and evidence provided, confirms our view that we should recommend that willwriting and estate administration activities should be reserved, predominantly on consumer protection grounds. Lives can be seriously damaged by incompetence or misdemeanour in drafting a will or administering an estate. “This will be the first recommendation by the Board to bring new legal activities within the regulatory scope of the Legal Services
Act 2007. It is not a step we take lightly. It will be targeted and proportionate.” The Law Society welcomed the proposals. Its president Lucy ScottMoncrieff said: “We are pleased that the LSB shares our concerns regarding consumer protection in this area. We urge the LSB and government to proceed swiftly to ensure that in will-writing, estate administration and probate, consumers are protected from bad advice and untrained providers.” q
Fraudsters target potential heirs n The BBC has issued a warning to the public regarding fraudsters claiming to represent its programme Heir Hunters, in which professional probate experts trace lost relatives of people who have died without leaving a will. The warning, posted on the BBC website, states: “Please be aware that these emails have no connection with the BBC or Flame Television, the makers of Heir Hunters, and you should ignore them. You should not reply to them and if you believe that persons are attempting to deceive you with a view to monetary gain, then you should contact the police.” q
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The writing’s on the wall n Is my spouse cheating? Who is bullying my daughter? Did my business partner forge my signature? Who wrote my phone number on a toilet wall? Handwriting expert, Simone Tennant has been asked all of these questions and more. In the majority of cases, the situations her clients have found themselves in have caused them a great deal of distress and, naturally, they are desperate to find out the truth. Fortunately, she has the skills and the experience to help them. Anyone working in the legal profession will be aware that predicaments of this kind, however personal they may seem, can lead to serious incidents and court cases. These can vary from fraud and embezzlement to assault and even murder. Establishing the truth is vitally important for those involved and solicitors need to be able to rely on the testimony of experts when these cases come to court. With more than 20 years’ experience as a graphologist and a 100% success rate, Simone Tennant has been able to shed light on many cases and help ensure justice is served. The role of a graphologist is a complex one. Not only are they experts at examining documents to establish if they are fraudulent, but they can also study a person’s handwriting for characteristics that will help the parties involved reach a clearer conclusion. In one recent case, the writing was literally on the wall for the suspects. Simone was approached by a senior professional who had started receiving lewd messages on his mobile phone from a variety of different sources. When one caller failed to withhold his number, the victim was able to track him down and discovered that his mobile number had been written on a toilet wall at a service station some distance away. Turning detective, the man drove to the place in question and took a photograph of the offending message. By studying the handwriting of both the words and the phone number, Simone was able to compare them to those on an employee’s application form and deduce that it had been written by the staff member that her client suspected. Another case that involved graffiti exposed a nasty school bully. Simone was called in by a senior teacher at a prestigious boarding school, who was concerned about bullying through graffiti written on the school walls. Having studied the handwriting of the five key suspects, Simone worked out who was responsible and the pupil confessed when faced with this evidence. In both instances, it was vital that the organisations were as certain as they could be when confronting those they suspected, as otherwise they could have found themselves the subject of a tribunal or court case. It was also important that an innocent employee or pupil should not have to go through the upset of being falsely accused. Every person’s handwriting has unique features. To the experienced graphologist, handwriting will reveal the identity of an individual, even if they try to disguise it by writing in different styles. From the size, slant and connecting strokes between letters to the punctuation, spacing and even pen pressure, the written word holds many clues and unique characteristics. A handwritten envelope, a signature, a series of numbers – all of these will give a graphologist clues to a person’s identity and characteristics. Having studied her craft over decades, Simone Tennant’s ability to establish the person – and the personality – behind the written word has meant that she is now in demand for CPR Part 35 reports, document examination, signature comparison and handwriting comparison. She is also able to provide an expert opinion on poison pen or anonymous letters and fraudulent claims, all of which can be invaluable for a wide range of cases that come to court.
Currently, around a third of her caseload consists of Expert Witness reports for solicitors working on high court, crown court and CPS cases, as well as employment tribunals. The remainder comprises independent written reports and verbal opinions in the areas of signature comparison, will disputes, employment documents, loan agreements and poison pen letters. Her clients range from a variety of businesses to government departments, local councils, schools, colleges and individual members of the public. With forged signatures, the reason behind the crime is usually financial gain and so the relatively small outlay of working with a graphologist is a very worthwhile return on investment. One of Simone’s clients had accidentally left his bank card behind a bar after a night out – an easy mistake to make. When he returned the following day to collect his card, he found a bill of thousands of pounds waiting for him. At first his bank refused to refund the money as the bills had been signed for but, once Simone was able to show that his signature had been forged, he was paid back in full. Doubtless he will be more careful next time. q • To find out more about the services provided by Simone, please visit www.simoneshandwriting.com, e: info@simoneshandwriting. com or t: 0141 375 7829, 01484 768285 or 07958 123771.
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There is more to conferencing
than the capital n At the end of August the Law Society announced it was postponing its national conference aimed at corporate-focused lawyers. The event was to have been held at the Celtic Manor Resort in Newport, Gwent. The rescheduled event will take place next year in London. The event was billed as ‘the first of what promises to become a landmark annual event for the profession’. The reason for the postponement, according to a Law Society spokesman, was that “…it has become clear that the geographical location presented something of an obstacle to the intended audience”. The fact that corporate lawyers were unwilling to venture along the M4 for a major conference was criticised by some commentators, particularly as the Association of Personal Injury Lawyers has held its annual conference there. Expert witnesses, however, are not so loth to venture outside the capital to gather. In November the Expert Witness Institute holds its first event at what it describes as its “brand new Midlands venue” – Heritage IFA in Solihull. Meanwhile the leading medicolegal trainer SpecialistInfo has held its events in Birmingham and Manchester as well as London. The West Midlands is also the venue for the Law Society’s advocacy training weekend, which takes place in Stratford-upon-Avon.
Photo courtesy of Enjoywarwickshire.com Conferencing outside London has a number of advantages, many of them related to cost. Not only are venues less expensive, accommodation is also more affordable and often more widely available. One region that is experiencing growth is the so-called Heart of England, centred on Warwickshire. In particular, the area around Coventry has adapted itself to attracting corporate and leisure exhibitions and conferences, with the Heart of England Conference and Events Centre and
Stoneleigh Park both offering large-scale facilities. A few miles away in Birmingham the NEC is known as the country’s central exhibition venue. More and more corporate organisations are finding it attractive to hold their own in-house conferencing events to bring together often far-flung offices and ensure training and CPD is up to date, and the temptation to move out of London to the archetypical English countryside is becoming an ever-stronger pull. q
Legal roadshow gets ready for 2013 Birmingham kick-off n Throughout September and October a number of conference and exhibition events took place at a number of venues around the UK. Organised by the SOLICITORS group, the Law 2012 roadshow offered law firms the opportunity to meet up with leading suppliers to the legal profession while fulfilling CPD requirements with a comprehensive conference and seminar programme. The autumn roadshow started off at Cardiff on 12-13 September before moving on to London’s Olympia Conference Centre. In October the show visited Leeds, Birmingham and Manchester before finishing the year at Glasgow’s Grand Central on 30-31 October. Already preparations are in place for the Spring 2013 series of events. The Holiday Inn, Birmingham Airport, will once again set proceedings in motion from 25-27 February. It is anticipated that some 900 legal professionals will attend the event over the three days. The event is supported by 11 conferences featuring some of
the profession’s leading speakers. The SOLICITORS group is the largest collection of law firms in England and Wales and organisers of the profession’s largest legal conferences and training exhibitions across the UK. It claims a membership of 22,000 like-minded professionals and offers training services and the profession’s largest buying group, including discounts preferred suppliers and the profession’s largest professional indemnity insurance programme. Firms join either as an associate or full member. Associate membership is free of charge to all its customers and the full membership fee is set according to the size of the firm. q • Further information is available from the SOLICITORS group on 01332 226601; email enquiries@thesolicitorsgroup.co.uk or visit www.thesolicitorsgroup.co.uk/exhibitions. www.yourexpertwitness.co.uk
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Speaking in tongues how the Ministry of Justice got itself into hot water with MPs over translation services n During October two committees of MPs either heard or issued critical assessments of the working of a contract between the Ministry of Justice and Capita Translation and Interpreting (formerly Applied Language Services) for the provision of interpreting and translation services for courts and tribunals in England and Wales. The most recent was the influential Justice Select Committee, which heard from the chairman of the Law Society’s criminal law committee that defendants, sometimes with no previous convictions, were being remanded in custody simply because no interpreter had been provided. In one case a defendant had been remanded in custody three times because of the absence of an interpreter. Earlier, the chairman of the Magistrates Association, John Fassenfelt, was reported as telling the committee: “I had an example recently when there was a Russian interpreter. The defendant said something. The interpreter didn't translate it. This person's job was to interpret, not to decide ‘that's not important’.” Having taken written evidence earlier in the year the Justice Committee is now taking oral evidence and online submissions, which can be given anonymously. A week previously the Public Accounts Committee heard that senior procurement officials had ignored a report by consultants warning of the risks of implementing the contract in the first place. The Law Society Gazette reported that three senior officials, including head of procurement Ann Beasley, admitted that they had not read the report from a financial data company, which advised them not to do business worth more than £1m with the contractor. The chair of the committee, Margaret Hodge MP, reportedly described the admission as “shocking evidence” and said the three had ignored a “very obvious and basic bit of due diligence”. In September the National Audit Office said the MoJ had: “…considered the financial report but did not see it as a barrier to the award of the contract.” The contract for interpretation services in courts and tribunals came into operation at the beginning of February and has been dogged by controversy ever since. From its inception there have been stories in the legal press regarding bad translations leading to trials collapsing because of mistranslations, clerks resorting to Google Translate to find the words to inform defendants of future court
dates (ironically, one of the testimonials on ALS’s website was from Google) and court time wasted because of the absence of a translator that had been booked. At one point Labour MP Emily Thornberry called for ALS to be prosecuted for contempt over its failures. Unsurprisingly, Attorney General Dominic Grieve QC turned down the urgings of Ms Thornberry, saying: “The failure to provide an interpreter to a court does not seem to fall within the law of contempt,” adding, “This is an administrative issue best addressed by wasted costs and, ultimately, those who arrange such services for the courts.” The issue had become politicised when most members of the main interpreters’ and translators’ professional associations boycotted the new system because of perceived poor pay and travelling remuneration, leading to a claim by Justice Minister Crispin Blunt that ‘grossly overpaid’ professional interpreters had caused the problem. His outburst followed a demonstration outside Parliament in March. Also in March, it emerged that the MoJ had been warned two years previously that the contract would lead to wrongful detentions and that professional interpreters would boycott it. Then-director of the Professional Interpreters’ Alliance, Zuzana Windle, had warned: “…the position of our members is that they will not work for agencies and, should the contract go ahead, they will seek to leave the profession” Despite some improvement, figures published by the MoJ on 18 October show that the system is still not operating to its required target. According to a Statistical Bulletin: “During the period
covered [from 30 January to 31 August] there were 72,043 completed requests for language services covering 163 different languages. Of these requests, 53.4% were for criminal cases (including Crown and Magistrates’ Courts cases, and requests made by prisons), 38.5% were for tribunal cases (including immigration and asylum), and the remaining 8.1% were for civil or family cases.” Over the whole period the MoJ claims a ‘success rate’ of 89%. That compares to a target of 98%. Perhaps more revealing is the number of complaints. Of the 3,937 complaints recorded, 2,256 (57.3%) were from tribunals, with the most common reason for complaint being that the interpreter was late getting to the assignment. At criminal courts and prisons, the most common reason for complaint, according to the Bulletin, was that there was no interpreter available. That accounted for 34.6% of complaints from those sources. What is not revealed is the number of times an interpreter was not available at court. On 30 October Gavin Wheeldon, former CEO of Applied Language Solutions, claimed in evidence to the House of Commons Justice Committee that there had been instances of intimidation and threats to interpreters working for his company by other members of the interpreting profession opposed to the contract. q
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Scottish lawyers welcome agreement on independence vote n On 15 October Prime Minister David Cameron and Scotland’s First Minister Alex Salmond signed an agreement, known as the Edinburgh Agreement, confirming the Scottish Parliament’s power to hold a referendum on the subject of Scottish independence. The results of that referendum will be fully respected by both governments. According to an announcement by the Scottish Government, both governments are agreed that the referendum should: • Have a clear legal base • Be legislated for by the Scottish Parliament • Be conducted so as to command the • confidence of parliaments, governments and • people • Deliver a fair test and a decisive expression • of the views of people in Scotland and a • result that everyone will respect The announcement said: “The governments have agreed to promote an Order in Council under Section 30 of the Scotland Act 1998 in the United Kingdom and Scottish Parliaments to allow a single-question referendum on Scottish independence to be held before the end of 2014. The Order will put it beyond doubt that the Scottish Parliament can legislate for that referendum. “It will then be for the Scottish Government to promote legislation in the Scottish Parliament for a referendum on independence. The governments are agreed that the referendum should meet the highest standards of fairness, transparency and propriety, informed by
consultation and independent expert advice.” The agreement followed a consultation held by the Scottish Government on the process of referendum, which began in January and closed in May. More than 26,000 groups, individuals, businesses, voluntary organisations and trade unions responded, including the Law Society of Scotland. A similar consultation was held by the UK Government, as the Union of the Kingdoms of Scotland and England is one of those matters reserved to the UK Parliament, on which the
Scottish Parliament has no power to legislate. It was the UK Government's view that legislation for a referendum brought forward by the Scottish Government could be challenged by anyone in court and the Scottish Government would lose. The Law Society of Scotland also responded to that consultation. The society subsequently welcomed the announcement by both the UK and Scottish Governments of agreement on how the referendum on Scottish independence will be conducted. Its president Austin Lafferty said: “Subject to parliamentary approval, this agreement removes the possibility of any successful legal challenge to the competence of the Scottish Parliament to hold a referendum on independence, and it helps to ensure that the referendum will be clear, fair, legal and decisive. “Having now resolved the procedural issues, the debate can now move on to the substantive detail of Scotland's constitutional future. The Scottish people deserve a mature, reasoned and informed debate as they are asked to answer the biggest constitutional question in 300 years. Everyone has a part to play in that debate over these next two years.” The Prime Minister and UK Scottish Office ministers are confident that any referendum would result in the Scottish people rejecting independence – a fact attested to, some believe, by the fact that David Cameron signed the agreement at all. q
Scottish legal expertise promoted in Dublin n The Advocate General for Scotland, Lord Wallace of Tankerness QC was one of a number of prominent Scottish legal figures present at the annual conference of the International Bar Association in Dublin on 1 October to promote the Scottish legal system as “one of international repute which can offer a range of services for global business, including arbitration and legal process outsourcing”. Speaking at the Edinburgh Centre for Constitutional Law the following day, he said: “At this gathering of lawyers from around the world, I was able to make clear the UK Government’s commitment to promoting the Scottish legal system, a tangible example of which is ensuring that Scottish firms are able to participate in some of the foreign trade missions that we operate.” Brandon Malone, chairman of the Scottish Arbitration Centre, and its chief executive Andrew Mackenzie were also in attendance to promote the centre, Scottish arbitration and Scotland as a seat for international arbitration. As well as attending various conference sessions on arbitration and mediation, Andrew and Brandon were invited to numerous additional events, and attended a number of receptions held by various organisations and law firms. Andrew Mackenzie said: “IBA Dublin provided us with a premium platform to interact and exchange ideas with international arbitrators,
lawyers, publishers and other international arbitration centres. It allowed us to network with over 5,000 delegates, including many of the leading players in arbitration, and further advanced our objective to put Scotland on the international arbitration map.” q
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Apple uses ‘apology’ to praise its product n The patent dispute between Apple and Samsung took another turn on 26 October, when Apple published a statement on its website admitting that Samsung did not infringe its patents – a statement demanded by the High Court and confirmed when Apple’s appeal was denied on 18 October. The latest eyebrow raising was caused by the form of the ‘apology’. It carried quotes from the original trial judge in July, who described the Samsung model as being “not as cool” as its Apple adversary. The implication drawn was that it couldn’t be a copy because it is not as good. In its lengthy statement, Apple quotes the judge as saying: “The extreme simplicity of the Apple design is striking. Overall it has undecorated flat surfaces with a plate of glass on the front all the way out to a very thin rim and a blank back. There is a crisp edge around the rim and a combination of curves, both at the corners and the sides. The design looks like an object the informed user would want to pick up and hold. It is an understated, smooth and simple product. It is a cool design.” Later in its statement, Apple goes on to say that in Germany and the US, courts have found in its favour. The statement doesn’t mention that a court in South Korea has ruled that both
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companies infringed each other’s patents. It must be one of the very few cases of a commercial dispute over design patents having entertainment value. q
Law firm’s data just got bigger n National firm Eversheds says it is the first law firm to offer its clients ‘big data’ techniques to help them understand competitors’ business strategies and avoid major risks, according to a report in the Law Society Gazette. According to the report, ‘big data’ is an IT industry term for the analysis of very large sets of data, such as comments ‘scraped’ from websites like Twitter and customers’ location revealed by their mobile phones, to produce useful intelligence. Banking, healthcare and retail businesses are all said to be investing heavily in the sector. In the legal sphere, its use has so far been limited to electronic disclosure, and some work on costs. The firm is working with ‘sentiment analysis’, using data gleaned from social media sites to visualise perceptions of a business or brand. Eversheds says it has installed five state-of-the-art interactive touch tables – devices that visualise data in a graphical representation – to help experts map data and behavioural patterns in real time. q
British politicians and democracy Cultural conflict of interest by DR BASHIR QURESHI FRCGP, Hon FRSPH n The British Parliament is the mother of democracies, the Indian Parliament is the world’s largest democracy and other Commonwealth countries have their own democracies – these are undeniable facts. Akin to every religion, democracy has various sects, each one with different expectations and practices, based on local and national needs. Democracy could be specified on a country basis such as British democracy, Indian democracy, South African or Nigerian democracy and Australian democracy. The basic principle remains the same but practices vary. Moreover, some innocent cultural differences can lead to conflicts, as happens in the British Parliament and London Borough Councils, where a minority of non-English groups are represented. So, let us compare English and Indian cultural, religious and ethnic customs among politicians. In British democracy, conflict of interest to favour a relative, friend or a voter is forbidden and English councillors get elected and re-elected. Voters are free lions. In Indian democracy, show of interest to favour a relative or a voter is required otherwise Indian councillors would not be reelected. Voters have elephant memories. Two recent examples illustrate the above issues locally and nationally. Hounslow Councillor The case of an Asian British councillor was reported in the Hounslow Chronicle in August 2012. The councillor was alleged to have favoured officially an Asian British resident in getting planning permission to build an extension to a house. The opposition party highlighted the allegation. An investigation was held and the councillor was cautioned but kept his job. British Cabinet Minister According to reports in the British media from May to September 2012, an Asian British Cabinet Minister was alleged to have committed three breaches of the Parliamentary Code of Conduct. Firstly, receiving parliamentary expenses to rent a flat from a family friend who refused to accept money. Secondly, taking a business partner to Pakistan on an official visit as a British Minister. Finally, inviting the same business partner to meet the Prime Minister at an Eid get together held at 10 Downing Street. The opposition party homed in on it and, after an inquiry, the Minister was cautioned but kept her job. Akin to a glass half full or half empty, what some people call a bonus, others describe as a bribe. In England everyone is supposed to be innocent until proven guilty. The reverse is the case in India and even in the USA. Whereas the British live as a nuclear family where everyone is ‘independent’ of each other, the Indians live as an extended family where everyone is ‘dependant’ on each other. Cultural customs die hard or never die.
Under The Human Rights Act 1998, Article 9 ‘everyone has the right of freedom of thought, conscience and religion’. In British courts, a murder becomes manslaughter when cultural, religious and ethnic (racial) factors influence the facts and justice. The English call it a lift but Americans invented the elevator! The Race Relations Act 1967, revised in 1976, can be applied by respecting the distinctions between cultural, religious and ethnic customs or by ignoring these totally. Where mutual recognition and respect of these distinctions is in practice, racial integration occurs leading to progress. Where these distinctions are not recognised and respected, racial segregation results leading to tensions. Nevertheless, birds of a feather flock together. Politics, economics, law and social harmony are intertwined. One cannot exist without the other. Distinction between democracies needs to be recognised objectively. There is no gain in thinking that we are all the same or that we must be the same. Mutual respect and co-existence would reflect prosperity and bring success. We can all be proud of being British, despite our different customs. Let us respect each other by tolerating our innocent differences in cultural, religious and ethnic customs in democracy. British politicians, from all ethnicities, and the press are free to take their pick. q • Dr Qureshi is an expert witness in cultural, religious and ethnic issues in litigation and also in GP clinical negligence. He can be contacted via email at drbashirqureshi@hotmail.com.
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How housing expertise can make a big difference in personal injury cases by KATHERINE JONES of KBJ Architects n Often disabled people – and those caring for them – feel they have little choice but to live with accommodation that fails to meet their real needs. Poor design and standardised housing make disability problems worse, rather than promoting ease of use and independent living. To make the most of a settlement, it is important that it provides a home with the comfort and functionality to minimise the effects of disability. Social awareness and legislation has increased recognition of the needs of people living with disability, but for those involved in personal injury cases a deeper understanding of the accommodation needs of a disabled client makes it easier to achieve such a home. KBJ Architects can help build that understanding.
Independent living Designing spaces to meet the needs of disabled people is a skill that requires, besides architectural expertise, an in-depth understanding of their day-to-day needs. For example, getting the right balance of ventilation and warmth, and achieving a constant humidity and temperature year round, is not straightforward, but it satisfies one of the fundamental needs of people who by themselves cannot put on or take off clothing, or move themselves into or out of sunlight or draughts – indeed the most disabled may find it difficult to communicate the need at all. To meet this challenge requires a blend of architectural skills (making the most of natural light and shade) and extensive knowledge of materials, and cooling and heating systems. By the nature of their condition, disabled people find they spend more time at home, so it is even more important to ensure that the home environment meets their needs to the fullest extent. Something as basic as the floor finish can make a huge difference to ease of movement in a wheelchair. Carpet, for example, is much more difficult for a wheelchair user than a smooth wood or tile surface, which is also hard-wearing and minimises maintenance costs. An increasing range of specialist equipment, including sanitary fittings, remote-controlled doors and windows, and computer systems enable disabled people to care for themselves, work and enjoy pastimes unaided. Knowing
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how to design spaces to accommodate this equipment is essential if they are to offer the maximum benefit. Keeping up to date with the range of equipment on offer is a task by itself. KBJ Architects has created homes with fish tanks, aviaries, multi-sensory environments and raised beds for gardening, that have allowed people to enjoy hobbies to which they might not otherwise have access. They have designed gyms and hydrotherapy pools giving the opportunity for much-needed exercise. The practice has created work environments that allow people to study and find employment, thus encouraging feelings of greater self-worth and worth to the community. They have designed spaces that make it easier for carers to support the people they are looking after, helping to retain paid carers and improve the quality of life with friends and family. All of these aspects and opportunities need to be considered when designing homes for those with life-changing disabilities, whether suffered at birth or through illness or accident later in life. By creating such spaces, KBJ Architects can help them minimise the physical, mental and social consequences of their disability, and offer them a much higher quality of life.
Early consideration of needs In personal injury cases, often attention is first paid to questions of causation and
responsibility for the disability. However, particularly where disability is severe and entails substantial care and equipment costs, the cost of housing makes up a substantial proportion of settlements, when one takes into account the short and long term needs of the client, including specialist equipment, livein carers and the housing they need. To ensure that the client obtains the best value for money while minimising the cost to those funding the settlements, and to help satisfy the overriding objective of Part 35 of the Civil Procedure Rules, the question of housing should be considered at the earliest opportunity. This can help achieve interim settlements which address immediate needs, while ensuring that short-term remedies do not conflict with longer-term solutions, so avoiding wasted expenditure. Housing is also a subject for which the appointment of a single joint expert can be more appropriate. This offers a way for claimant and defendant to obtain the impartial advice required by CPR 35 while minimising the overall cost of expertise.
Appropriate settlements The housing assessments written by KBJ Architects call on a wealth of expertise and promote independent living by increasing usability and function for client and carers in the home. The practice has over thirty years experience of designing for the
disabled and twenty years of writing housing assessments. They have seen a growing demand for personalised expert witness reports that not only examine the accommodation and housing needs of disabled clients, but suggest comprehensive adaptations, design proposals and costings. Feedback from solicitors suggests that this expertise has helped obtain settlements that allow their clients to have a better quality of life, through more comfortable housing
designed to mitigate their disability. KBJ Architects is an award-winning RIBA chartered practice, with offices in Bristol and Wales, and clients all over the country. They work closely with legal representatives and other health and building professionals to define the most practical and cost-effective ways of satisfying the housing needs of each client, both in the short and long term. Individually tailored reports describe options for adaptation and new construction
to accommode specialist equipment and give estimates of cost and time. The practice supports the legal team with clear, concise advice and, as well as attending court, they are regularly asked to hold discussions with other expert witnesses, so helping to minimise the cost of court hearings. q • For further information visit www. kbjarchitects.co.uk or call 01550 760271.
Accreditation scheme provides peace of mind by DEBORAH EVANS, chief executive of the Association of Personal Injury Lawyers n Litigation can be a stressful experience for an injured person. So it is imperative that a claimant is made to feel safe in the knowledge that he is represented by a good lawyer. The Association of Personal Injury Lawyers’ (APIL) accreditation scheme provides injured people with the peace of mind that their interests will be well represented. A not-for-profit organisation established more than 20 years ago, APIL is dedicated to helping people who have been injured through negligence. The association strives to improve standards in personal injury practice and also campaigns for improvements in the law to benefit injured people. There are more than 4,500 members of APIL across the UK and overseas of whom 1,240 are accredited. APIL accreditation is seen by the industry as a quality mark which allows injured people to select a qualified solicitor who, in APIL’s opinion, will represent their best interests. Last year the association came out top of voluntary accreditation schemes (VQSs) in a review led by the Legal Services Consumer Panel (LSCP). Injured people can browse a list of accredited members on APIL’s website – www.apil.org.uk – and select a lawyer directly by postcode and by the type of injury in which the lawyer specialises. People can also be put through to an accredited lawyer directly, or obtain contact details of an accredited lawyer, by telephoning the association’s head office. In order to be accredited and recommended to the general public by APIL, lawyers have to meet high standards of practice. For example, accredited members normally have at least five years’ experience of running their own cases unsupervised and they are regularly monitored throughout their accredited membership of the association. To ensure that lawyers who have been accredited in the past continue to keep up to date with the latest developments in personal injury law, they complete a minimum of 16 hours personal injury training each year. After becoming a senior litigator, an accredited lawyer can improve his credentials further by becoming a fellow of APIL and then a senior fellow, which is the highest accolade awarded to only the very few. Recently, APIL also established new specialist quality marks for experienced clinical negligence and brain injury practitioners who are accredited and who have demonstrated particular competence in these fields. APIL also accredits legal practices (for solicitors) and chambers (for barristers). For a firm to be accredited in its entirety, all its branches must be accredited in their own right. For a practice to be accredited, there must be at least one senior litigator to supervise every ten lawyers who earn a fee in that practice.
For a set of chambers, there must be one accredited barrister to supervise every five. An accredited office must also demonstrate that it is committed to the training and development of its staff and to client care. APIL must be convinced that lawyers are given proper opportunities to develop their skills and are kept up to date with key areas of procedure, damages, costs, funding and liability. APIL’s accreditation scheme is overseen by an independent academic quality council, which approves amendments to criteria and ensures that training meets APIL’s high standards. Members also have to agree to abide by the APIL consumer charter and code of conduct. The needs of injured people are at the heart of everything APIL does. q
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Threat of litigation against medics increasing, says report n Doctors are facing unprecedented increases in claims for compensation for clinical negligence, according to the Medical Defence Union, the mutual organisation that indemnifies doctors and dentists against claims for negligence and malpractice. It published its annual report in August. In it the MDU said the medico-legal challenges faced by doctors are “unmatched in the company’s 126-year history”. According to a statement, during 2011 it opened 17% more medical claims files, saw an 18% rise in requests for assistance with GMC investigations and a 56% increase in disciplinary cases against GP and hospital doctor members, compared to the previous year. MDU chief executive Dr Christine Tomkins said: “Our members are turning to us for support and advice at a time of unprecedented change in both the medicolegal climate and their working environment. There has been a sharp increase in the number of complaints to the GMC, though there is no evidence of a drop in professional standards. The number and cost of
negligence claims against doctors is also rising. “Doctors face regulatory challenges, such as the introduction of revalidation later this year and, for GP practices, registration with the Care Quality Commission in 2013. Inevitably, this means more members are turning to the MDU for advice and assistance.” She went on to say that 30,000 members had contacted the MDU's 24-hour helplines last year for expert medico-legal advice. “We successfully rebut 70% of medical claims against our members and we have a proven record of speaking out in members’ interests,” she said. “For example, in the Annual Report, we explain how we took an active part in a number of consultations aimed at curbing the disproportionate legal costs in ‘no win no fee’ cases. The resulting changes are due to take effect in April 2013 and will, we believe, lead to a more level playing field in this area.” The Association of Personal Injury Lawyers (APIL) dismissed the MDU’s assertions that there has been no drop in standards. In a
letter to the Law Society Gazette, which broke the story, APIL’s chief executive Deborah Evans stated: “Furthermore, the MDU’s own figures, which show a 56% increase in disciplinary cases and an 18% increase in General Medical Council (GMC) investigations, surely also represent a serious issue for the medical profession in relation to standards. “So it is difficult to see why the MDU has ruled out the possibility of diminishing standards as a potential explanation for the increase in claims.” q
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Discuss concerns, and write it down! n One major area of concern among the medical profession is that patients are pursuing complaints around issues which doctors were confident had been dealt with. Professor Bill Ribbans is a consultant orthopaedic surgeon from Northampton, who has 32 years of clinical experience, including as honorary orthopaedic surgeon to Northern Saints Rugby Union Club and the English National Ballet. He told Your Expert Witness: “There seems to be a tendency that, even if you are absolutely clear in your own mind that you have discussed fully a potential complication with a patient, if it is not documented in the notes it carries no weight subsequently. Most doctors, particularly junior doctors, feel that if they have fully counselled a patient about complications and one does occur, there is a degree of protection. However, this does not seem to be the case. Recently I have questioned the value of the consenting process at all.” The issue of obtaining full consent has been stressed in advice to GPs regarding reducing the risk of complaint and subsequent litigation following minor surgery. The MDU’s advice says: “Obtain valid consent, warning patients about the risks, potential benefits and alternatives to the procedure and the possibility of an unsuccessful outcome. Note this discussion in the records.” Again, according to Professor Ribbans: “In the last 10 years a significant proportion of our consulting time is now spent in providing written and verbal information for patients regarding outcomes of surgery and potential risks and complications. It is interesting how many patients ask not to be told. Additionally, there is an increasing and very healthy tendency for patients to receive all copies of correspondence.”
Professor Ribbans also expressed concern about the effect the threat of litigation has on doctors. “I think there is very little appreciation amongst the legal profession of the effect of an accusation of medical negligence against a clinician,” he said. “Speaking to many of my colleagues, it has a significant psychological effect. It is driving a far more defensive form of medicine leading to over investigation of patients. “Once an initial letter is received it is often months, sometimes longer, before anything further transpires and if, as in most cases, the accusation is rescinded, there is no apology or regret at what they have put the clinician though.” A further issue raised by Professor Ribbans concerned patients with complications – or simply not achieving their desired outcome. “Most orthopaedic surgeons will undertake about 700-800 operations a year. If they are the best surgeon in the world, they may have a 99% success rate. That would suggest that every year they have 7 to 8 patients who consider them to be the devil incarnate. Clearly, only one person can be the best surgeon in the world, which would suggest that each of us have a number of unhappy patients every year. That is the nature of surgery. However, there seems to be a view now, amongst the legal profession and patients, that if they do not have a 100% positive outcome then that it is a reason to sue.” A final point he made is that patients seem unwilling to discuss the issue with the surgeon. “Patients do not seem to want to come back to the surgeon to discuss the fact that they may be unhappy about an outcome and often the first indication that the surgeon has about an unhappy patient is from a solicitor. I think it would be useful if the solicitor suggested that their first port of call should be to go back and discuss matters with the surgeon.” q
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Assessing psychological trauma: Current issues by DR. HUGH KOCH and DR. FRANK BEESLEY n Guidance given for the instruction of experts to give evidence in civil claims (2012) clearly endorses the overriding duty of experts to help the court obtain evidence, which is independent, reasonable and fair. This is regardless of the pressures of litigation. To achieve this when assessing psychological trauma, several key factors require consideration in every case. These are: reliable diagnosis, consistency of evidence from different sources differentiating effects of index event from other events, interpretation of GP (and other) medical notes, prognosis and all appropriate treatment – culminating in an overall robust opinion which withstands scrutiny and challenge.
Reliable diagnosis The two diagnostic classification systems of DSM IV (TR) (American) and ICD (10) (European) allow clinicians (psychologists and psychiatrists) to assess two aspects of trauma –type of reaction (e.g. stress, anxiety, depression) and levels of severity (acute, chronic and sub clinical or not clinically significant). This has crucial implications for both prognosis and treatment and quantum assessment (Koch & Kevan, 20051). Certain diagnoses, such as post-traumatic stress
disorder (PTSD) and chronic pain, need extra careful assessment as they have very significant effects on occupational, social and psychological functioning and also have higher quantum implications.
Consistency of evidence Experts are typically presented with several different sources of evidence which they have to weigh up in relation to each other – claimant self report, GP and hospital attendance history, significant other witness statements, other medical evidence and, on occasions, surveillance evidence. Experts have the skill to ‘stand apart’ from any one source and withhold opinion and conclusions until all available sources of information or alternative range of opinions have been considered. Experts also have skills in assessing claimant response style and providing opinion on consistency of evidence including level of magnification, exaggeration or truthfulness.
Interpretation of medical history GPs are typically reliable historians of a claimant’s medical attendances before, during, and after the index event, which are subsequently litigated. Such data is contemporaneous and nearly always uncontaminated by the legal process (Koch and Mackinnon, 20042). Greater analysis of the types of interpretation that can be made of GP attendance records is needed to clarify for the courts how the GP records can
helpfully reinforce or contradict claimant based self report (Koch and Lillie, 20063).
Prognosis and appropriate treatment Experts routinely assess from available records and self report the duration of the psychological trauma and subsequent sequelae. Where the psychological difficulties persist, then the expert is required to recommend an appropriate treatment in line with current research (e.g. NICE recommendations) and also indicate a sensible prognosis in terms of recovery time. This is based on an assumption of a motivated claimant who wishes, via their own efforts or with treatment offered, to resolve their psychological difficulties. The effect of the ongoing litigation must be taken into account in that it can frequently reinforce or maintain preoccupation with thoughts and memories of an adverse index event and make ‘moving on’ more difficult. q • More detail can be obtained for Dr. Hugh Koch in Cheltenham (clinics held in London, Birmingham, Cardiff, and Plymouth) or Dr. Frank Beesley (clinics held in Blackpool, Blackburn, Burnley, Carlisle, Preston, and Lancaster). www.hughkochassociates.co.uk. REFERENCES 1. Koch H.C.H. and Kevan T. (2005) 1. Psychological Injuries. XPL Press, St. Albans 2. Koch H.C.H. and Mackinnon J.M.M. (2004) 1. GP records and medico-legal process. PI 1. Compensation. August 2010-2012 3. Koch H.C.H. and Lillie F.J. (2006) GPs: The 1. primary port of call. Legal and Medical, 11
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Traumatic brain injury and clinical neuropsychology by DR CHRISTOPHER R PLOWMAN BSc MSc Clin Psych D CPsychol AFBPsS Consultant Neuropsychologist n The most authoritative figures available estimate that over 100,000 people a year are admitted to hospital following a Traumatic Brain Injury (TBI). The severity of the TBI (typically classified as mild, moderate or severe) is usually determined by factors such as whether a loss of consciousness occurred, and for how long; any reduction on measures of awareness (usually determined on a 3-15 point scale called the Glasgow Coma Scale); the length of time of confusion or disorientation, known as posttraumatic amnesia; and the presence or otherwise of abnormality upon brain scanning. However, the functional outcome is of more significance than the classification, certainly for the claimant and their families, and this is where neuropsychology comes in. Although research has found a strong correlation between TBI severity and residual cognitive deficits – that is, the more severe the injury, the more likely this will result in significant and permanent cognitive impairment – the reported effects and recovery from brain injury can be unpredictable. Whilst neuroimaging and brain scans may be useful in aiding diagnosis, they can be incomplete and misleading. Thus, representations of a brain’s structure obtained through scans do not always correlate to the claimant’s functioning or pathology. Equally importantly, they say little about the behavioural changes that may have occurred following a brain injury. A comprehensive and detailed neuropsychological assessment can help to fill these gaps as it seeks to objectively determine an individual’s ability to perform a number of cognitive tasks, areas of strengths and weaknesses, and provides a more functional explanation of the effects of traumatic brain injury. In addition, the best reports will also reference background information and incorporate behavioural observations, with the test results being supported by, and supporting, the clinical picture. A detailed neuropsychological assessment is essential in helping to determine and quantify the impact that an injury has had on a claimant’s cognitive functioning, and aims to establish any organic pathology or brain damage which may have occurred as the result of the index accident for which the claimant wishes to seek compensation. Neuropsychological assessments typically use standardised tests. This means that most tests have been administered on thousands of individuals, often within a nonneurological population to establish a base-rate of ‘typical’ or ‘normal’ cognitive functioning. This allows a claimant’s results to be compared with the unimpaired or ‘normal’ population, a process which will expose any weaknesses or abnormalities which might be due to the accident. The process by which the clinical neuropsychologist evaluates and determines the presence of brain damage is considered a scientific endeavour, involving an evidence-based approach to the testing of hypotheses, which are then incorporated into a process of differential diagnosis. This entails specifying the diagnostic possibilities, estimating their relative likelihood by acquiring information about a patient’s symptoms and the anatomical system involved, as well as considering psychological and social factors. The acquisition of any new information, such as employment
records, family interviews and witness statements are then used to re-evaluate the probabilities, rule out certain opinions and decide on the most likely diagnosis. There are, of course, many other explanations for neuropsychological impairments which may not be related to the index accident, and in a medico-legal context it is important to consider and quantify the relative impact of other factors, such as learning disability, progressive neurological conditions, psychiatric conditions and medical history and to identify subtle changes which may not be evident from utilising other measures of investigation. In addition, it is important that the clinical neuropsychologist bear in mind other factors which may have impinged upon a person’s test performance, including fatigue, pain or discomfort, medication effects, substance abuse, past medical conditions or poor motivation. A traumatic brain injury can be a devastating event, but obtaining an accurate measure of it’s consequences is the first step on the road to recovery. q
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Keeping ahead of the curve The changing demands of medico-legal work for a clinical psychology service by DR JAMIE BARSKY of MTAS Psychology n The role of an expert witness in legal proceedings is under constant scrutiny – and rightly so. Our conduct, from the point of instruction to giving evidence in court, can have a significant impact on all the stake holders involved in proceedings. Whether in personal injury, family or criminal law, the role of an expert witness can be an important determinant on the length and outcome of a trial. Experts in psychology and mental health are increasingly used in personal injury law, in recognition that even relatively minor road accidents can result in a significant impact on a person’s confidence and experience of anxiety behind a wheel. Lawyers are rightly concerned to ensure the necessary treatment for their clients as even relatively mild driving anxiety can persist for years
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untreated and significantly impact the wellbeing of claimants. As more psychological assessments are instructed by claimants’ lawyers, increasing numbers of defendant solicitors are, rightly, instructing psychologists to ensure that the conclusions reached by the original psychologist are robust and reliable. Family courts have long been using expert witness psychologists to provide independent assessments within care proceedings and private family law cases. Changes are afoot in this field. There is, quite rightly, more pressure to reduce the length of time children remain without permanency of placement, and the contribution of expert witness waiting times in these delays is being scrutinised. The high cost of their fees, which in public law cases are paid by the publicly funded Legal Services Commission, is also being scrutinised.
Psychologists must address both of these concerns if they want to maintain or increase their level of instructions. Criminal law experts are facing similar pressures, and must also think carefully about how they operate in the current economic and political climate. q
Why an ‘incident at sea’ can be particularly traumatic by PROFESSOR RODERICK J ØRNER, Consultant Clinical Psychologist
'There are the living, the dead and the sailors' (Victor Hugo 1802-1885).
While Hugo’s comment regarding the invisibility of seafarers once their vessel had vanished below the horizon is no longer true in that particular sense, there remains an extent to which the nature of the maritime industries – because of the internationalised make-
up of their personnel and the inherent risks of their activities – has led to the psychosocial treatment of maritime incidents requiring particular expertise. Here, Professor Roderick J Ørner, an expert in the treatment of maritime trauma, explains what is required.
n The nature of post incident response is paired with that of grief as a natural reaction to bereavement, and survivors of maritime accidents are grouped with staff in emergency or uniformed services in terms of their deployment. An important difference, however, is that while the latter two professions have established peer support and group cohesion strategies to reduce adverse psychological reactions to critical or traumatic events, similar developments have not become part of the legacy of most spheres of the maritime industries’ workforce. After shipwreck, fire, explosion or being held by pirates there may be good practical reasons for dispersing officers and crew to their respective countries of residence. An associated hazard for survivors may be to remove those most severely affected from colleagues who are best placed to give support and guidance through times of personal crisis. A set of evidence based psychological and social guidelines has been formulated to minimise adverse reactions or adjustment difficulties experienced by maritime trauma survivors. These comprise preventative recommendations to raise awareness of how major incidents affect participants psychologically, knowledge about sensible principles of incident management and post-incident psychological assessment and interventions in the acute, intermediate and longer terms.
of those placed in danger. Keeping crew informed about measures being taken, having an active role in setting up and using safety equipment engenders a sense of active engagement, competency and control that in turn promotes closer group cohesion which is crucially important for resilience building. Information should also be at hand, for instance in leaflet form, to familiarise those involved of typical psychological reactions evoked by critical events and trauma in the workplace. Under circumstances in which preventive resilience building has been overlooked, group divisions may be more marked than cohesion and resilience is unlikely to match possible challenges or emergencies. This may leave those involved fearful, insecure, uncertain and isolated, which on their own or in combination are known to increase vulnerability to trauma.
Prevention: informed or negligent? Formalised psychological care is a relatively recent complement to long-established medical provision within all maritime industry sectors. In key respects they share similar basic principles of delivery, starting with prevention. From a psychological perspective the principal aim is to foster staff resilience in the event of incidents that are reasonably predictable within a particular industry sector. While a degree of personal hardiness is often taken to be a part of seafarers’ characters, it is nevertheless incumbent on stakeholders to organise a roll out of resilience building measures, just as they have statutory obligations to rehearse lifeboat launchings or engage crew in rescue craft exercises. Responsible parties should have undertaken risk assessments that take account of the particular dangers that are associated with a particular maritime activity. Cruise ships in the Arctic face different risks from tankers navigating the Straits of Hormuz. Reasonable resilience building measures have the advantage of being largely practice based with added time for reflection. It is underpinned by all those involved knowing that all reasonable safety and security measures are being implemented for the protection
During incident response: informed or negligent? Pre-incident planning and resilience building should reduce psychological vulnerability to critical incidents and trauma as and when they occur. Susceptibility is nevertheless linked to the seriousness of particular events (torture, explosion or fire, for example), its duration (being held hostage or an oil pollution incident) and degrees of personal involvement (closeness to a person killed). In all instances, the manner in which an unfolding event is managed by all who are implicated may limit vulnerability or increase responsiveness to exposure. Good leadership practices from senior officers, which typically actively engage junior staff in incident response, serve the latter objective. Chaos and submission to circumstance engender the latter. An important quality marker for incident management is the degree to which strong group cohesion is retained or fostered during an event. Some general principles of good leadership practice are to encourage those involved to talk about what is happening rather than remain silent, keeping everyone implicated informed of developments as they occur on location and elsewhere and, after responding to immediate emergencies, to try as far as circumstances permit to re-establish planned routines of daily activity. Being physically active is important during extended crises as is retaining physical fitness. Maintaining high standards of personal hygiene has important physical health and psychological benefits through sustaining a sense of self control in at least one area of life, albeit a small one. Informed leadership in support of resilience will focus attention on those matters over which all involved retain some degree of control. Prolonged periods of being at the mercy of circumstances (being shipwrecked, for example) or the actions of others (imprisonment, being held hostage) tend to engender physical and psychological tensions, restlessness, conflict within www.yourexpertwitness.co.uk
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peer groups and a general sense of discomfort as if physically ill. Incident management should therefore be informed by a recognition that little purpose is served by constantly raging against or trying to change that over which one has no control. Benefits for resilience derive from concentrating on those aspects of life that are amenable to personal influence, to actively pursue these activities and never lose sight of the fact that some degree of personal control is always present.
It is particularly important if those implicated are about to be evacuated home or dispersed to other locations. That removes survivors from their peer groups, which are their primary sources of support and understanding. Delivery of informed post-incident care that matches actual needs is achievable by initial screening assessments carried out by, or supported by, appropriately qualified and experienced personnel. In doing so, plans for intermediate and longer-term follow up can be made. q
Post incident response: informed or negligent?
• Professor Roderick J Ă˜rner is a consultant clinical psychologist and Visiting Professor in Clinical Psychology at the University of Lincoln. He is director and lead clinician at ForceMajuereMaritime, a specialist consultancy service for trauma in the maritime industries.
Research projects that study the course and development of trauma survivors tend to find that acute reactions evoked by particular events tend not to be reliable predictors of responses over the intermediate or longer terms. Emergent reactions vary greatly, from mild shock and surprise to devastating personal crises during which a person is unable to cope or adjust. Frequently, the level of psychological damage caused is expressed through physical symptoms and complaints, closer examination of which tends to reveal an underlying inability to cope with the demands of everyday life, problems with behavioural excesses such as too much drinking, eating and acting out of character. Medication to eliminate presented symptoms is not an effective pathway for addressing these serious personal crises. Prognosis is significantly improved through informed post incident management involving psychological assessment, psychological first aid, mobilising effective social support and psychological therapy at a later stage, subject to established need. Discussion about the quality and adequacy of post incident psychosocial support in the maritime industries should be informed by three basic principles of care. The first is that those most directly affected will typically experience some degree of distress at least in the early phase post incident. But distress is not a disorder and actions taken to treat acute psychological reactions are usually misguided. During the early phases the need is for a range of practical supportive interventions for survivors and their families, referred to as psychological first aid. The second principle underpinning post-incident care is that survivors are at all times expected to eventually cope and make successful adjustments to their changed circumstance. Psychological first aid therefore seeks to re-establish a sense of personal control, active engagement in coping and adjustment, linking up with family, friends and colleagues and once again claiming a sense of personal empowerment. This emphasis on active engagement arises from the expectation of coping and stands in stark contrast to any measures that may have cast survivors in passive, submissive roles akin to those of patients suffering organic illness. Thirdly, decisions about the kind and extent of post incident support provided for maritime trauma survivors should, to a large extent, reflect their own explicitly expressed views of which forms of help will directly address their immediate and on-going needs. As far as circumstances reasonably permit, this mode of service planning requires consultation with survivors and their families within a day or so of incident closure.
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The impact of trauma n Not all people who experience trauma develop Post Traumatic Stress Disorder (PTSD), according to Consultant Psychologist, Dr Jill Neilson. However, the experience of a trauma event can have a significant and debilitating impact on the individual’s life, as even the common symptom of avoidance leads to people making significant changes to their lives – avoiding situations, places and people as a way to manage their distress. “When there is a diagnosis of PTSD the level of debilitation varies,” says Dr Neilson. “When I take an instruction in a personal injury case I assess the individual’s level of pre-morbid and current functioning and from this I formulate ideas about prognosis and make treatment recommendations. There are specific criteria used to determine if someone has PTSD. One of the most commonly used diagnostic manuals is the Diagnostic and Statistical Manual of Mental Disorders
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(DSM-IV). Whilst an individual may not currently fulfill the criteria for PTSD – depression, anxiety or phobia – they can be suffering psychologically and in need of therapy to return to their pre-morbid state of mental health.” Dr Neilson continues: “A good psychological report should offer a psychological formulation of the current difficulties and prognosis, identifying any need for psychological treatment. It should also identify psychological factors important in the presentation and treatment of physical injuries such as permanent physical disability or scarring – and if these factors are likely to have a deleterious impact on treatment”. q
When can you commit an offence but not contravene the law? A case study by DR M. R. GRAHAM MBChB, PhD, FRSM, MICR, MFSSoc n A 39 year old adult caucasian male was charged with using threatening and foul and abusive language, on the telephone to a medical practitioner’s receptionist contrary to Section 5 (1) and (6) of the Public Order Act 1986. The defendant admitted using the language but believed that he had been goaded into using such language because he had not received appropriate treatment for his current medical problem, which was chronic lower back pain including sciatica. He was defended in the Magistrate’s Court by a solicitor with extensive experience of criminal law.
National Health Service (NHS) past medical history • 2001 and 2005: Blood analysis by the NHS demonstrated high • cortisol levels, but no further investigation or treatment was • initiated. He had not been informed of the results from both of these • tests and had only known about them after viewing his medical • records at a meeting with an ICAS representative in 2009. • 2005: Stress induced memory dysfunction. • 2008, 2009: Prolapsed lumbar intervertebral disc. • 2009: Magnetic Resonance Scan demonstrated degenerative • intervertebral discs with disc impingement on lumbar nerves.
Social history • He was unemployed, receiving sickness benefit and lived alone. • He had a University degree in Biomedical Sciences. • He had work experience in the field of electronics and engineering. • He had a failed automotive electronics business from 2004-2008 as • a consequence of mental distress and pressure. • He did not smoke, drink or use any recreational drugs.
Family history • He had attended several children’s homes and boarding schools • from 11 to 16 years of age. He had foster parents at the age of 16. • His parents had divorced when he was 23 which resulted in chronic • depression and counselling at a psychiatric unit. • His father was deceased and had been diagnosed with Asperger’s • syndrome and Alzheimer’s syndrome. • His mother was deceased from metastatic carcinoma of the breast • and he had suffered a recent acute bereavement reaction.
• overload, enabling a person to interact successfully in a social • environment.
Private examination • Psychological tests revealed abnormal results. • The Hospital Anxiety and Depression State Questionnaire (HADS) • demonstrated an Anxiety level (A) of 15 and Depression level (D) of • 16, which are high. [4]
Psychological history • Prior to his court case he had a private diagnosis of Asperger’s • syndrome [1], Tourettes’ syndrome [2] and Low Latent Inhibition [3] • in 2008, for which he had received no NHS acknowledgement or • treatment. • Asperger’s syndrome is an autism spectrum disorder and people • with it show significant difficulties in social interaction, along with • restricted and repetitive patterns of behaviour and interests. It differs • from other autism spectrum disorders by its relative preservation of • linguistic and cognitive development. • Tourette’s syndrome is an inherited neuropsychiatric disorder with • onset in childhood, characterised by the presence of multiple • physical (motor) tics and at least one vocal (phonic) tic and is also • characterised by excessive foul and abusive language when under • stress. • Low latent inhibition. Most people are able to ignore the constant • stream of incoming stimuli but this capability is reduced in these • individuals. Latent inhibition is assumed to prevent sensory www.yourexpertwitness.co.uk
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• There was current evidence of active depression and anxiety and • overt evidence of an acute bereavement reaction to the recent • death of his mother. His mother’s partner only notified him three • weeks following her death which compounded the situation. The • Hamilton Depression Scale questionnaire (HAMD) gave a score of • 25/66 which is high. [5,6] • The Buss-Durkee Inventory on feelings of hostility and aggression • questionnaire was normal. [7]
Summary and opinion • He had history of Asperger’s syndrome [1], Tourettes’ syndrome [2] • and Low Latent Inhibition [3] as well as depression and anxiety. • His condition was exacerbated by the recent death of his mother. • His medical condition of prolapsed disc was such that when under • pressure his responses could be considered appropriate. • His arrest and subsequent charges and court appearances • appeared to be a culmination of his frustration at the delay in the • public services that should be available to someone in his situation. • Such behaviour, although unacceptable, is understandable as a • consequence of his Asperger’s syndrome. • Because of his condition of Asperger’s syndrome the expert • witness appointed by the court did not believe that he intended for • his behaviour to cause distress, nor that he was aware of the impact • it would have on others. Consequently he did not believe that there • was any criminal intent. [8,9] • His solicitor argued these points of law and the defendant was • acquitted of the charges and a recommendation of psychiatric and • psychological support was made. • The perspective that should be considered is that the characteristic • traits and behaviours associated with Asperger’s syndrome (such • as poorly developed theory of mind, or obsessionality) may lead • to a greater vulnerability to accusations of offending behaviour • despite no criminal intent, especially when there appears to be little • regard for the effect of certain behaviours upon other people. • To this date the NHS have not acknowledge that his conditions • were medical illnesses, but preferred to classify them as personality • disorders, for which no treatment is available. • Convictions of this nature will continue to occur unless individuals • with such conditions are correctly represented by both expert • legal personnel and health expert personnel trained in psychological • disorder. q • Dr Graham is Principal Lecturer, Academic Lead and Head of Department at the Institute for Health, Medical Science and Society. Tel: 07828 575140 or 01978 293054. Email: m.graham@glyndwr.ac.uk. REFERENCES 1. McPartland J, Klin A (2006). ‘Asperger’s syndrome’. Adolesc Med Clin 17 (3): 1. 771–88. 2. Lombroso PJ, Scahill L. ‘Tourette syndrome and obsessive-compulsive 1. disorder. Brain Dev. 2008 Apr;30(4):231–7. 3. Carson SH, Higgins DM, Peterson JB (2003). Decreased Latent Inhibition Is 1. Associated With Increased Creative Achievement in High-Functioning 1.Individuals. Journal of Personality and Social Psychology, 3, 499–506 4. Zigmond AS and Snaith RP. (1983). The hospital anxiety and depression 1. scale. Acta. Psychiatr. Scand. 67: 361-370. 5. Hamilton M (1960). A rating scale for depression. J Neurol Neurosurg 1. Psychiatry; 23:56–62. 6. Hedlund JL, Vieweg BW (1979). The Hamilton Rating Scale for Depression: a 1. comprehensive review. J Operational Psychiatry; 10:149–165. 7. Buss AH, Durkee A (1957). An inventory for assessing different kinds of 1. hostility. J Consult Psychol; 21: 343-9. 8. Allen D, Evans C, Hider A, Hawkins S, Peckett H, Morgan H. (2007). 1. Offending Behaviour in Adults with Asperger Syndrome. Journal of Autism and 1. Developmental Disorders. 38(4): 748-758. 9. Allen D, Peckett H, Evans C, Hider A, Rees H, Hawkins S, Morgan H. 1. (2007). Asperger Syndrome and the criminal justice system. Good Autism 1. Practice. 8(1): 35- 42.
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NHS Litigation Authority reflects on a decade of maternity claims n On 26 October the NHS Litigation Authority (NHSLA), the body which manages legal claims made against the NHS in England, published a report detailing 10 years of claims arising from NHS maternity care. The report concluded that having a baby while in the care of the NHS is very safe. However, more training, development and support for clinical staff could help to protect mothers and their babies further from accidental injury. There were 5.5 million babies were born in England during the decade from 1 April 2000 to 31 March 2010 with 5,087 maternity claims for injury made against the NHS during the same period – less than one claim per 1,000 births. The report found that junior doctors and inexperienced midwives were often involved in the management of labour in those cases, without adequate assistance from senior clinicians. It concluded that having more senior staff available during labour, together with a better understanding among junior staff about when to ask for help, may prevent harm. The report also found that effective multi-disciplinary team working is essential for safe maternity care. Three types of case accounted for 70% of the total value of claims: mistakes in cardiotocograph (CTG) interpretation, mistakes in the management of labour and cases in which the outcome was that the baby suffered cerebral palsy. There were 542 claims for cerebral palsy with a total value of paid and outstanding payments of £1.3bn, reflecting the lifelong cost of future treatment and care. The report also looked at claims arising from failures in four
key areas in greater depth: antenatal ultrasound investigations, cardiotocograph (CTG) interpretation, perineal trauma and uterine rupture. NHSLA Chief Executive Catherine Dixon said: “Having a baby while under the care of NHS doctors and midwives remains very safe. Out of 5.5 million births in England during the decade covered by the report, about one in a thousand result in a legal claim against the NHS. “However, because maternity claims are so serious as they involve harm to mothers and their babies, it’s vital that we learn and share lessons from them so that professionals can improve their clinical practice in the future and prevent harm. That’s what our report aims to do.” David Richmond, the vice president (clinical quality) of the Royal College of Obstetricians and Gynaecologists, contributed to the report. He said: “This report has defined why problems occur and provides us with valuable information so that maternity services can put in place robust monitoring and risk identification systems to prevent them from recurring.” The NHSLA has stated it will work closely with the Department of Health and with other professional bodies and organisations in the coming months to share the lessons from the report with NHS clinicians across the country. The report also includes a series of information sheets designed to help clinicians raise the standard of maternity care in a range of specific risk areas. q
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Addressing communication problems can cut re-offending n There has been much research showing that problems with speech and language can be a significant factor in offending and act as a spur to re-offending. For example, it is known that around 60% of young people in contact with youth justice services in Scotland have speech, language and communication needs. That figure rises to 70% of offenders in Northern Ireland, according to figures published by the Royal College of Speech and Language Therapists (RCSLT). A recent study conducted by Queen Margaret University in Edinburgh and the RCSLT in Scotland identified a need for an increase in provision of speech and language therapy within Scotland’s criminal justice system, with few offenders receiving adequate help to improve their communication skills – skills which could better equip individuals to live more successfully and prevent a return to criminal activity. The study also helped to identify the type and scale of the current service provision within the system and where service improvements could be made. The results of the study were published in March. Poor communication skills can have a serious and detrimental effect on people’s lives. Difficulties in expressing themselves or having problems understanding and interpreting someone else’s speech can make it impossible for the individuals concerned to make the best use of any rehabilitation services that might be on offer. Therefore, poor communications skills may go some way to accounting for the high rates of re-offending which has a negative impact on the individual young person, their community and society at large. Ann Clark, senior lecturer in speech and hearing sciences at Queen Margaret University, said: “Although the value of speech and language therapy is recognised in prisons, the system is lacking assistance for young offenders still living in the community – assistance which may help prevent individuals re-offending. ”Worryingly, although the criminal justice system is receiving many hours of work from speech and language therapists, it appeared that only two therapists had their contracted hours within the system protected.” Kim Hartley, co-author of the report and RCSLT Scotland Officer, concluded: “Although the study shows a growing demand for speech and language therapists in the criminal justice system, there are virtually no speech and language therapy services with staff or resources to meet the demand – in today’s financial climate the situation is set to get even worse.”
In Northern Ireland the RCSLT worked with the Department of Justice NI and the Youth Justice Agency on a seminar held at the Law Society of Northern Ireland in January. Communication is the Key was designed to pass on the lessons to legal professionals and others working within the justice system in understanding the challenge of communication difficulties during the justice process. RCSLT’s Northern Ireland country policy officer Alison McCullough MBE said: “Communication difficulties can have a startling effect on a person’s ability to contribute constructively in the judicial and custodial process. What may be perceived as a lack of interest, a disregard for the rules of the courtroom or a lack of remorse can sometimes be explained by identifying an underlying communication difficulty or need. “Under the present system there is no pathway for assessing the communication needs of individuals charged for offences, held on remand or even entering the formal stages of the justice system.” Northern Ireland’s Justice Minister David Forde stated: “One of my priorities as Justice Minister is to improve access to justice for all. It is crucially important that we do all we can to ensure the early identification and assessment of individual need and tailor services to meet them. I welcome today’s event as an opportunity to showcase best practice and share ideas on how we can best assist those with communication difficulties.” q
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Awards celebrate campaigners n Last year the Royal College of Speech and Language Therapy launched the Giving Voice Awards to ‘celebrate the creativity and commitment of speech and language therapy champions’. The awards are a development of the Giving Voice campaign, wherein members of the RCSLT raise awareness of the life transforming work of speech and language therapists. The aim of the awards is to: • Show how speech and language therapy • transforms lives • Reward the efforts of those who have • committed time and energy on behalf of the • Giving Voice campaign • Celebrate the achievements of those who • have contributed to the campaign • throughout the year The awards are divided into team awards and individual awards. The team awards are for England, Scotland, Wales, Northern Ireland and student/newly qualified. The individuals are nominated by others and are for: • Politician of the year • Social media campaigner of the year • Journalist of the year • Partner organisation for joint work at a • national level • Partner organisation for joint work at a local • level
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• Celebrity ambassador • Service user champion • Outstanding contribution to speech and • language therapy from within the profession
• Outstanding contribution to speech and • language therapy from outside the profession The awards ceremony will take place on 27 November. q
Therapy forms vital part of rehabilitation n For many people the commonest point of contact with a speech and language therapist is in a hospital. It could be following surgery, to ensure the patient can swallow properly before eating again or, sadly, following a stroke, either conducting dysphasia screen on admission or carrying out a communication assessment. Regaining speech and language following a stroke can make a considerable difference to a victim’s quality of life, a fact recognised by the new guidelines on stroke care produced by specialist in all areas of stroke care under the umbrella of the Intercollegiate Stroke Working Party at the Royal College of Physicians (RCP) and issued in September. The Royal College of Speech and Language Therapists describes the document thus: “The guideline is the most comprehensive ever produced and acts as a template for the commissioning, organisation and delivery of stroke care at a time of major upheaval in the health service. It recommends commissioning stroke services across the whole pathway and integrating services.” In terms of clinical negligence cases, expert opinion may be sought in order to assess the aftercare needs of a victim of negligence as part of an on-going care package. Those who suffer brain injury as a result of negligence may receive funding for such a package as part of a compensation award. q
Case Studies Martin Samuel, of Speech Language Therapy Ltd, describes three medico-legal cases involving speech and language impairment
Case 1 n In 2008 I was instructed by solicitors to carry out an assessment on a 39 year old man who was injured when working. The patient was an inpatient in a rehabilitation unit and was seen for an assessment of his language, speech and communication. The Comprehensive Aphasia Test (CAT) was used to: a. carry out a brief cognitive screen to assess the degree that a. cognition may affect the patient’s performance with language a. tests b. identify the level of impairment of the receptive (auditory and a. visual) and expressive (speech and writing) modalities of a. language, as well as central semantics
c. administer a disability questionnaire to try to identify the patient’s a. own perception of their difficulties. The Pragmatic Rating Scale – which is observational based – was completed and refers to the use of language. This is more concerned with how things are said and the person’s interaction in the communicative process, than with the content (the words used) or structure (the syntax) of what is communicated. The report highlighted the patient’s areas of impairment and gave recommendations for targeted ongoing rehabilitation. This included recommending the patient be moved to a smaller, more supported living environment more conducive to promoting communicative interactions. q
Case 2 n I was instructed by a case manager in 2010 to assess a 17 year old man who had a RTA in 2007. The patient and his family were reporting communication difficulties, which reportedly started shortly after his accident. The patient was visited on two occasions to carry out informal and formal assessments of his communication and language. A standardised language assessment was carried
out (CAT), as well as a non-standardised assessment (Mount Wilga) for higher functioning areas of language which the Comprehensive Aphasia Test was not sensitive to. The assessment findings, as well as clinical observations, were used to report on the level of impairment as well as the social and participatory effect that the impairment had on the patient. q
Case 3 n In 2012 I was instructed by solicitors to provide an assessment of the severity of a patient’s stammer, and how this affected him in his daily life. The patient, who was 20 when seen, was involved in a RTA 6 years earlier. The case was complex because as well as wanting an assessment of the stammer (there are no standardised assessments, but useful tools and observations are used instead) the solicitor wanted to know the extent to which the RTA had exacerbated his existing stammer which had been present since childhood. Medical records were reviewed (including all speech and language therapy provision) to try and ascertain a likely level of severity and frequency of the stammer pre and post RTA. In assessing the patient the Modified Erickson Scale of Communication Attitudes (S-24) was used, where a high score – which this patient had – indicates a very strong negative view of their spoken communication. The frequency of stammering (though not the severity) can be
measured by identifying the % of syllables stammered. Stammering severity is a judgement which is made by the therapist. Other areas which were assessed included: a. stammering history b. triggers – what causes the stammer c. the nature of the stammer – overt or covert stammering behaviour d. avoidant behaviours – what the patient does to avoid stammering d. which can be at sound, word, situational or role level e. management strategies utilised f. changes to the stammer. A report was then written which addressed 4 specific issues – the impairment, the cause and exacerbation of the stammer, the condition of the stammer and the prognosis and effects of treatment. q
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Medico-legal pitfalls in interventional cardiology By DR DUNCAN DYMOND MD FRCP FACC FESC, Consultant Cardiologist n The medico-legal spotlight is now shining on interventional cardiologists who implant stents into narrowed or blocked coronary arteries, a procedure known as PCI (percutaneous coronary intervention). Some issues that can cause medico-legal problems are: a. Issues of the consent form and explanation of risks. b. The appropriateness of the procedure, ie. was it really b. necessary? c. Adequate discussion of the alternative treatments such as c. medical therapy or coronary bypass surgery. d. The competency of the operator. e. Recognition and handling of complications. The consent form has enormous influence in cases where complications arise and patients may claim they were not told of the risks and hence ‘informed consent’ rather than mere ‘consent’ is crucial. The form must be completed away from the operating area and before premedication. All the serious major risks must be written and the consent form signed by a patient or relative and by a doctor who is capable of doing the procedure and not by a junior who is not. The consent form should explain why the PCI is being done, what the alternatives are and the benefits to the patient. The need for on-going medication must be clearly explained. The appropriateness of PCI has been under the spotlight recently in the United States where procedures in more than a million patients, undergoing treatment in 694 hospitals, were examined and the indications tested against the American College of Cardiology Guidelines. A small proportion of PCI procedures were performed for ‘unclear indications’ although there was wide variation. The authors calculated that if even 4% of ‘potentially inappropriate procedures with unclear indications’ are not carried out then in the American system (not ours) this would save 840 million dollars annually! It is no surprise that this has been picked up by private medical insurers in the United Kingdom, some of whom have made aggressive comments about inappropriate PCI in the UK. The agenda to save money is fairly obvious. In addition the NHS needs to be satisfied that inappropriate stenting is not widespread to conserve precious resources. However a detailed read of the guidelines shows that ‘appropriate’ means ‘reasonable but not mandatory’ whereas ‘unclear or uncertain’ does not mean inappropriate, only that more research is needed in that area. As there are more than 4,000 clinical scenarios, many of which are not covered by guidelines, the clinician has to use clinical judgement but it is imperative to back this up with the use of published data often supported by the use of adjunctive techniques available. Interventionists may be accused of proceeding to PCI without considering the alternatives such as coronary bypass surgery. Usually the choice is not controversial but in complex cases, particularly in advanced coronary disease, coronary bypass surgery may give a better long-term outcome. There are scoring systems to determine where surgery would be superior to PCI, and discussion with surgical colleagues should take place in complex cases. It follows from this that each interventional cardiologist should be aware of skill limitations and
not do cases beyond their competence. The choice of vascular access site has also come under scrutiny. Both the radial approach (wrist) and the femoral approach (groin) are widely used but recent publications have shown fewer bleeding complications from the radial route than from the femoral, especially in patients undergoing PCI who are heavily anticoagulated with blood thinners. It follows that patients who have complications from the femoral route may seek legal advice believing that it was negligent to carry out the procedure from the femoral rather than the radial route. However experienced femoral operators will usually have very low complication rates, and provided care is taken in access and in control of bleeding, then femoral procedures are appropriate. Also, many patients are unsuitable for the radial because the artery in the wrist is very small, may have a tendency to go into spasm and be quite painful. An experienced interventionist should be able to provide clear advice and guidance to solicitors who are approached by patients considering litigation, based on clinical experience and an expert knowledge of the evidence base. q
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Getting to the
root of the problem by TOBY TALBOT BDS MSD (Washington) FDS RCS Expert witness Toby Talbot argues that, regrettably, government policy has been a major factor in increasing his workload. n Medico-legal cases involving dentistry have been rising exponentially over the last 20 years and we now rank second in the world after Israel. In fact, a dental practitioner in the UK is now four times more likely to face civil action than a dentist in New York. I was fortunate enough to work in the US in the early 80’s and then return to the UK to watch things unravel. Our profession is failing to live up to patient expectations and as a consequence we’re increasingly being held to account. There are several contributing factors that have led to this more litigious culture, and they are largely a consequence of government policy. Firstly, the new dental contract, conceived by the Department of Health for general dental practitioners providing care under the NHS, isn’t financially viable if you apply it literally. The contract now pays a practitioner the same if a tooth is extracted, or if the tooth is preserved with complex root canal treatment. The former may take as little as 10 minutes, the latter 3-4 hours of treatment time. As a result, there has been a 40% increase in extractions, particularly in children. After 35 years in practice, I still require an hour to conduct a consultation and examination of a patient when I first see them. The NHS dentist is now expected to do the same and include x-rays, oral hygiene
instruction, dietary advice and carry out a scaling, all for £18.50. Assuming the clinician needs to see 7-8 patients per hour to cover costs, this leaves 7 minutes for an initial assessment. This inevitably means missed diagnoses and errors with treatment planning, and thus legal action. I believe that NHS dentistry has actually held back the development of good practice which has led to a loss of skills and the need for practitioners to cut corners. The rise of Mixed Dental Practices, where both NHS and private services are delivered, only makes the situation worse. Quite rightly, the public will wonder why on earth the profession signed up to such an agreement. Regrettably, the profession is represented by the British Dental Association (BDA), which has always had a cosy and, some might argue unhealthy, relationship with the Department of Health. It can’t help when senior members of the Association are referred for annual honours for their support of government policies and the Chief Dental Officer might be seen as a career politician, cautious about supporting his colleagues at the coalface lest he rock the party boat. Secondly, the advent of recognised ‘specialties’, endorsed by the General Dental Council, has resulted in an explosion of specialist practitioners on the high street
that were previously only found in the University and Hospital sectors. Whereas maxillo-facial surgeons and orthodontists have been around for over 50 years, you’ll now find restorative dentists who rebuild/ restore teeth, prosthodontists who replace lost teeth, periodontists who treat gum disease and endodontists who provide root canal treatments. Furthermore, as dental research has progressed, ‘implantology’ now allows teeth that have been lost to be fixed to the jaw with greater predictability. What comes with these sophisticated treatment options is greatly elevated expectations from the recipients. Patients have never paid more for their dental treatment and, quite understandably, they expect a lot more for their money. And what happens when they don’t get it? It has been noted by the author that once a patient has attended the surgery of one of these specialists, they understandably make comparisons with their general dentist and start to ask awkward questions and consider legal action. Unfairly comparing the work of a generalist with that of the specialist. Interestingly, this comparison is not made between the GP and the Hospital Consultant. I’ve worked in the public hospital and university sectors, general practice and the private sector. I’ve been a medico-legal expert witness for 17 years, and I’ve observed a huge increase in civil actions as a result of the above changes in UK dentistry. I believe the general public is getting a raw deal from the public sector, and cynics will say this has been centrally orchestrated to encourage the private sector to unburden the public purse, much in the same way that optician services have largely become privatised on the quiet. Of course it hardly needs to be said that the comments and views expressed in this article are the author’s, and not necessarily shared by the profession, but I would welcome an open debate and, ironically, a future with less work as an expert witness. q www.yourexpertwitness.co.uk
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What the dental expert needs by EDGAR GORDON MSc DDS BDS MGDS FFGDP n Solicitors instructing dental experts always make the assumption that it is broadly similar to instructing medical experts. It definitely is not. There are a number of factors that make dental personal injury and alleged clinical negligence reports very different. The first is the tedious chore of dealing with the notation of so many teeth in the mouth, and interpreting both handwritten and computerised dental records. The fact that both NHS, and increasingly private, dentistry is not without a monetary relationship adds a dimension not seen in medicine. Furthermore, the relatively modest settlements compared to medical cases act as a disincentive. However, set against these difficulties is the certainty that almost all dental cases settle without trial. Solicitors are very good at reminding doctors how they want their compliant Part 35 CPR reports to look like. Unfortunately, large blocks of pre-formatted text do not always apply to the dental expert. What is it that dentists want? They want: • Disclosure of all the client’s dental records including those prior to • the accident / failure. This is absolutely essential in order to • determine the pre-incident condition of the teeth. An example • would be a root filled front tooth that fractured. Since such a tooth • has a finite longevity it becomes relevant since it is at risk in any • event. Another example is a failure to diagnose/treat gum disease • Since the successful treatment of gum disease involves a • maintenance programme of oral hygiene, past records of patient • compliance are essential. • Disclosure of an updated self-administered medical questionnaire • taken in the dental surgery at the beginning of a course of • treatment. This is not the same as the family doctor records. GP • records are mostly useless, and a waste of time forwarding, unless • specifically asked for. • Original or duplicate dental x-rays – definitely not photocopies. If a • dentist discloses photocopies they should be sent back without • settling administrative costs. Photocopies are useless. Needless • to say all disclosed dental x-rays and photographs should be • properly dated. Since for virtually all cases x-rays are an integral part • of treatment planning and the consent process the solicitor’s • instructions should confirm that their absence is either because none • were taken or that they have been lost. This can be of significance. • Where crowns, bridges, dentures or implants have been provided • disclosure of laboratory work-sheets or invoices is required. • Instructions concerning orthodontics are rare. However, disclosure • of pre- and post-treatment study models (casts) are mandatory in • such cases.
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Lastly there is the matter of horses for courses. Medical consultants, particularly in the largest speciality of orthopaedics, often recommend maxillo-facial oral surgeons where a dental input is required. Bearing in mind that most dentistry is carried out in the High Street by general dental practitioners it might be more appropriate if solicitors looked more at this peer group in the dental expert business. q
Bite Mark Analysis Does it have a future? by DR ROLAND KOUBLE PhD, BDS, MFDS RCS, PGCert(Endo) Forensic Odontologist & Dental Surgeon n The recognition of human bite mark injuries and subsequent analysis is well documented in the literature. Numerous case studies and reports show examples of successful analysis and comparison of a suspect’s teeth and a bite mark injury. However, more recently bite mark evidence has been called into question following several high profile exonerations by the Innocence Project in the United States. Other high profile cases around the world have also exposed situations with expert odontologists disagreeing with one another. One of the criticisms levelled at bite mark comparison has been the lack of a scientific evidence base. This is true and research is being undertaken at several centres internationally looking at various factors such as indivuality of human teeth, distortion and methods of analysis. Much research has focused on determining the uniqueness of the human dentition but this may be of little relevance in a distorted or faint mark. In fact my own research has looked at the the frequency of individual tooth characteristics and how these features may be reflected in the bite mark, rather than proving uniqueness which is not likely to be seen in the injury. Another area of concern is the problem of false positive identifications which range between 11.9 to 91% depending on the study one looks at. This issue clearly needs further investigation, but if the expert is cautious in his approach and takes a critical view of the evidence and limitations of what is possible, then potentially valuable analysis can be undertaken even if one can only state that the injury was caused by teeth. So, can bite mark injuries be analysed and compared to an individual’s teeth with any degree of confidence following the questioning of such evidence? With good quality photographs, showing clear distinct tooth marks, then a comparison to an individual’s teeth can be made. Generally it is accepted that it is easier to exclude a potential biter than to implicate them. Good quality photography, including a right angled rigid scale, is essential to make an assessment of the injury. Odontologists in the UK have recommended guidelines on bite mark analysis published by the British Association for Forensic Odontology. By following the guidelines, being cautious when stating one’s conclusions and only carrying out a comparison on good photographic evidence we can attempt to eliminate the risk of miscarriages of justice based on erroneous or overstated conclusions. We should never be afraid to state that the comparison is inconclusive, or that the evidence is not of sufficient quality for a comparison to be undertaken, even when there may be pressure to ‘come up with the goods’ so to speak. But on the rare occasion when the injury may have beeen recorded with sufficient detail in the photographs, or there is the presence of a distinctive feature to allow a comparison, then a match can be made. In fact, occasionally an injury can clearly be matched to the suspected biter’s teeth and we can
see that it was quite obviously caused by that perpetrator – but is there a scientific basis for such a match? The same criticism could be levelled at fingerprint and tool mark comparison. Some forensic odontologists would argue that research is not possible within this field and that the discipline relies on the skill and experience of the investigator. However this is a weak argument. Research within this field is limited by lack of funding and lack of experienced researchers within forensic odontology compared with other dental specialities. One must also consider the circumstances of the injury. For example, in a closed population sample with three suspected biters, we may be able to exclude two potential suspects but not the third. We may even be able to match the suspected biter if certain distinctive features in their dentition are reproduced in the bite. Therefore, by qualifying our conclusions based on the circumstances (closed or open population samples), the quality of the evidence and employing a self critical impartial approach to examining the injury, we can still give a useful opinion in an investigation. But we must also be prepared to restrict our opinion in cases where there is a lack of good quality evidence or where there is any element of doubt within our own conclusions. I, like many of my colleagues, have seen bite mark cases where the evidence was poor and the conclusions have been over-stated but I have also seen many cases where bite mark analysis has played a clear and positive role in a case. With further research to back up our discipline, bite mark analysis should be able to grow on a sound evidentiary base but that is dependent on forensic odontologists themselves pursuing avenues of research. q
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Cauda Equina Syndrome What is the role of the urologist? by MR SIMON FULFORD MBBS FRCS(Eng) FRCS(urol) Consultant Urologist n The Cauda Equina is a bundle of nerves that lie within the spinal canal, below the termination of the spinal cord from the level of the first or second Lumbar Vertebra to the coccyx. It is vulnerable to injury by compression. Most commonly this will be caused by a prolapsed inter vertebral disc but it can also be the result of spinal fracture, tumours of the spine, congenital or degenerative spinal conditions or complications of procedures such as lumbar puncture or spinal anaesthetic. Cauda Equina Syndrome (CES) is the combination of low back pain, sciatica, saddle anaesthesia (loss of sensation around the anus and over the buttocks), motor weakness in the leg(s) combined with bladder and bowel disturbance (retention and / or incontinence) and loss of sexual function. The Sacral nerves, which are part of the Cauda Equina, supply the bladder, bowel, urethral sphincter, anal sphincter and the sexual organs.
Pelvic organ dysfunction Bladder symptoms result from loss of bladder sensation and loss of normal bladder and sphincter contraction. This results in a variety of urinary symptoms ranging from retention, incontinence and poor bladder emptying to frequency and needing to strain to empty the bladder. Bowel symptoms result from loss of rectal and anal sensation, and loss of rectal and anal sphincter contraction. This results in constipation and overflow incontinence of faeces and flatus. Sexual symptoms include loss of genital sensation, loss of response to stimulation (erectile dysfunction in men and loss of lubrication in women), loss of climax and orgasm and loss of ejaculation. All of these consequences of CES will have a devastating effect on patients, which many state is far in excess of any residual pain or leg symptoms. Correct management of the pelvic organ dysfunction in CES is thus central to caring for these patients.
to expert ‘trouble shooting’ is important as complications such as urinary tract infections or worsening incontinence may occur and require further investigation and treatment.
Conclusion Patients with established CES should be referred to a urologist with an interest in neuro urology to be assessed and helped with their pelvic organ dysfunction. Unfortunately many cases of CES result in litigation for alleged negligence in relation to diagnosis or treatment. It is important that in these cases expert opinion from a urologist with an interest in neuro urology is sought in regard to pelvic organ dysfunction in order to ensure appropriate assessment of ongoing disability, treatment and prognosis. q
Management The key to bladder management is avoiding over distension and straining to void as this will result in worsening incontinence. This is usually achieved by regular clean intermittent self catheterisation, though in some patients permanent supra pubic catheterisation or even surgical urinary diversion may be required. Bowel management consists of a regime of aperients and rectal evacuation to ensure the bowel is regularly and completely emptied, thus minimising episodes of faecal incontinence. This can be achieved by digital evacuation or rectal irrigation systems. Some patients however will require a colostomy if these techniques fail. Erectile dysfunction and poor vaginal lubrication will often respond to standard pharmacological management but loss of genital sensation, and thus loss of climax and ejaculation, will be permanent and have significant impact on sexual satisfaction and relationships. It is thus important to explain these aspects of CES and to offer support with, for instance, expert psychosexual counselling. With such management and regular follow up, patients with CES and significant pelvic organ dysfunction will generally have a significant improvement in their quality of life. Follow up and access www.yourexpertwitness.co.uk
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Surgical revolution leads to more cataract claims n According to the Medical Defence Union (1) ophthalmology, as a specialty, is in the mid-range in terms of likelihood of being sued with, on average, one claim to be expected in every 15 years of independent (i.e. non-NHS) practice, although this can vary widely depending upon the sub-specialist area of practice. In reviews of both NHS and private practice (2,3), cataract surgery has been found to be responsible for the largest number of claims, primarily because of the large number of operations being undertaken – at over 300,000 a year, it is the most commonly performed operation in the UK. Modern cataract surgery is a fundamentally different and dramatically improved operation compared with that of say, 30 years ago. Whereas surgery once required a large incision and numerous sutures for closure, a stay in hospital of days if not weeks, and a period of lengthy visual rehabilitation with still a likely need for spectacles or contact lenses, cataract surgery is now a day-case procedure. It involves a sutureless small-incision that allows for immediate visual rehabilitation and, typically, a very predictable restoration of excellent unaided distance vision with spectacles required for reading only. No longer does one have to wait for the cataract to become ‘ripe’ but rather, one operates when the individual becomes symptomatic and wishes for improved vision. Accompanying this surgical ‘revolution’, expectations of patients have naturally increased, but unfortunately these have frequently also been accompanied by the incorrect perception that the operation is simple and straightforward, guarantees success and is without risk. It is therefore perhaps no surprise, in view of the large number of operations being performed, for claims to occur, even though the risk of an adverse event during or after surgery is actually relatively low. It is interesting to note that the most common cause of claims from cataract surgery has been found to be related to complications of surgery, of which possibilities the patient is generally advised during the consenting process before surgery and which, one might therefore reasonably argue, should not then be regarded as any cause for future complaint. The fact that following a less than ideal outcome, claims are nevertheless made and indeed won, suggests that either the receipt of consent is no barrier to a claim and/or, as is probably more pertinent, that communication with the patient has been unsatisfactory in the consenting process or in the aftermath of the surgery. Allegations of poor communication are indeed a common theme
in many complaints – in one study it was demonstrated that 70% of litigation was related to poor communication after an adverse outcome, where patients felt that they had been deserted, devalued, poorly informed or misunderstood (4). Following a poor outcome or where there is dissatisfaction, and whether or not fault is perceived, maintaining open lines of communication, adopting a conciliatory approach and explaining fully the situation – and apologising if necessary (that does not equate to admission of any liability) – can go some way to defusing the situation and preventing any subsequent complaint. It is very easy for a patient to trust and respect their doctor when matters have gone well but it is a real skill and accomplishment to achieve that when they have not.q REFERENCES 1. Tomkins C. Over 120 years of defending Ophthalmologists. Br J Ophthalmol 1. 2006; 90:1084-5. 2. Bhan A. et al. Risk management strategies following analysis of cataract 1. negligence claims. Eye 2005; 19: 264-8 3. Ali N. et al. Causes of cataract surgery malpractice claims in England 1995 1. 2008. Br J Ophthalmol 2010; 95: 490-2 4. Beckman H.B. et al. The doctor–patient relationship and malpractice. 1. Lessons from plaintiff depositions. Arch Intern Med 1994; 154: 1365-70.
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Hips and their problems by MR IAN FORSTER MBBS FRCS FRCS(Ed), Consultant Orthopaedic Surgeon n The hip joint is a commonly affected joint in children, following trauma and with degenerative arthritis – one only has to look at the number of hip replacements performed each year to realise that. It is a very stable joint, comprising a ball and socket, and only dislocates with severe trauma such as after a road traffic accident. It is a very common site for fracture, particularly in the elderly and children. Children can be born with a hip that is not developed normally and the condition of congenital dislocation occurs. Slight instability of the hip at birth is not uncommon but complete dislocation is rare. It is most likely in girls who are premature and after breach delivery. All children are indeed checked at birth and examined to see whether their hips are normal or not. Ultra sound is a very effective method of assessing the state of the hip, whereas X rays do not actually show the unossified head of femur and so are not so reliable. The diagnosis should be made and, provided this is made before the child actually walks, no long term disability occurs if it is missed in the initial stage. Usual treatment for subluxation is splintage and for dislocation possibly splintage and possibly surgery. Surgery sometimes causes death of the femoral head and collapse of the hip. If the diagnosis of dislocation is not made prior to walking then it is possible a case could
be made for negligence, because of it being missed, and there would be causation in the fact that there would be long term disability because of that. Another possible area where there can be problems in destruction of a child’s hip is if there is infection in the hip joint. When the child is very young it can be difficult to spot this, specifically within the hip when the child may be generally unwell. It is not uncommon, in the case of a sick child with no obvious cause, to have to put a needle into the hip and aspirate to see if there is any pus. In older children, particularly in boys, the femoral epiphysis (the growing head of femur) can fall off at the neck of the femur which is the bone upon which it sits. Over time and throughout childhood this area becomes ossified and the head and neck fuse together. No slip can occur thereafter but there is a period in the early teens where the femoral epiphysis can slip on the neck through this area, often following trauma. It can be bilateral, though not usually at the same time, and the unaffected hip should be observed and possibly fixed prophylactically. Another area of difficulty is that children frequently complain of pain in the knee as opposed to the hip and only by careful examinination is it clear that it is the hip that is the problem and not the knee. This is a very well known area of negligence. Generally if the slip is of a minor amount it can be pinned in situ by three narrow wires without any detriment. If the head has completely slipped off it may need to be replaced and the trauma of the replacement can give rise to avascular necrosis of the femoral head – i.e. the head would die because the blood supply has been interrupted. Some of these slips can be progressive, meaning they can be seen at an early stage, in a painful hip with a minimal displacement, and then progress on to major displacement which is obviously an area of concern. The more major displacements often give rise to osteo arthritis as well as avascular necrosis. Fracture to the neck of the femur is an extremely common injury. It tends to occur in the elderly following a fall but can occur in young people with a more major injury such as coming off a bicycle. Often in the elderly there are multiple medical disorders which make the management difficult. Diagnosis can also be a problem. Sometimes the fracture is a single crack and it is always necessary to have two views of the hip to see whether there has been a fracture and occasionally a bone scan may be required. The type of treatment depends on age, bone quality, medical condition, the site of the fracture and how much displacement there is. With a simple crack fracture observation could be successful and it is most usual these days for the fracture to be pinned. Such fractures can displace with time making them more difficult to deal with and hip replacement will then be required.
Negligence Failure to diagnose such a fracture could certainly give rise to a claim for negligence. With major displacement, where the femoral head is completely separated from the femoral neck, it is usual to perform some kind of replacement. Often these days, in people who are more medically fit, a total hip replacement is performed. Where there is minimal displacement sometimes reduction and pinning can be carried out. Occasionally in the elderly, who have a lot of medical disability and are unlikely to be able to walk without putting any weight on the leg, a replacement might be considered and would usually be a femoral replacement only. This is an area of dispute between doctors. A range of opinion would probably include both types of treatment in almost any case except for those who are really elderly or those who are really young. Arthritis of the hip is extremely common. Again the pain may present in the knee and it is important to examine the patient fully, examining both the knee and the hip to determine which is the area giving most trouble. Confusingly they often have arthritis in both areas with one usually being worse than the other. www.yourexpertwitness.co.uk
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In a situation where there is arthritis at both sites you would start at the hip and work downwards, though this is not always the case. Hip arthritis gives rise to pain – keeping the patient awake at night, causing difficulty with stairs, giving pain in the groin and an inability to put shoes and socks on. All of these make for quite a bit of disability and so, not surprisingly, hip replacement is a common procedure. Generally this is either a cemented or uncemented metal on plastic hip. Metal on metal hips are currently under some scrutiny. It is possible to do a bone conserving operation and just resurface the hip. This involves a metal on metal implant although there are restrictions on the people who can undergo this type of procedure successfully.
Litigation Assuming that the arthritis has been treated by a total hip replacement, there are a number of areas where litigation would definitely be a possibility. It is quite easy to lengthen or shorten the leg at the time of the hip replacement. Because of the position the patient may be in it can be difficult to judge leg length – patients are renowned for noticing quite a small difference in leg lengths of say 1 cm or more which might be present in the general population and giving no symptoms whatsoever. The giveaway is that on the X rays the hips will look dissimilar. Sometimes the hips are deliberately lengthened, if the leg has been short previously, to try to get both legs to the same length. This of course would be a positive benefit. In such stretching of the leg, and indeed any operation around this area particularly if the hip is approached posteriorly, there is a risk of injuring the sciatic nerve resulting in a foot drop. These injuries are quite well documented. There can also be injury to the superior gluteal nerve, which innervates the muscles around the top of the hip which abduct it. Clearly with an artificial hip dislocation this is a problem, although this risk is much reduced now that bigger sized hips are used. The force needed to dislocate a large hip is clearly much more than that to dislocate a smaller hip. The dislocation rate is less now than in the past but is still a problem. Recurrent dislocations (where the hip repeatedly dislocates without trauma) can be very difficult to manage. Dislocation may depend on mal position of
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the components. This would be suggested if the hip comes out with certain movements of position and, if this has happened, then litigation might well follow. There would be a matter of degree as to how much out of rotation the hip is, or how loose the hip is, at the time of the procedure. Vascular damage with a hip replacement is very unusual but it does happen. It was more common when we used to drill through the pelvis to locate the cup but this does not happen any more and so is more unlikely. Another problem is that the usual technique of entering the hip, through the small abductors, means that abduction can be weak afterwards giving patients concern because they have quite a ‘dropping gait’. This usually improves with time but occasionally has to be investigated and operations carried out. Fractures of the femoral neck and of the trochanter do occur during or after hip replacement. Generally they do not affect function, particularly if recognised at the time of surgery and fixed, but they can continue to be a problem with some of them occurring late. Expectation from a hip replacement is for it to last about 15 years or so – when of course the hip would wear out and perhaps need to be replaced again. With the current trend of people having hip replacements at a younger age this is a problem that has to be considered with patients being informed at every visit prior to the surgery. A more recent area of referrals nowadays, particularly with increased participation in sport, is pain in the young hip where the hip appears to be normal. Pain can be from the outside of the hip, so called trochanteric bursitis, where the band of tissue over the outside of the hip is rubbing on the trochanter itself giving rise to inflammation. This can be due to gait, activity and/or a tight ilio tibial band – all of which can usually be treated by non operative means such as injections and specific physiotherapy. There can however be pain from the hip itself. This is very difficult to elucidate but the usual investigations would be an X ray, which would be normal, and then an MRI scan. An MRI scan can show lesions similar to those in the shoulder with labral tears which may be benefited by hip arthroscopy. Hip arthroscopy is a relatively rarely performed procedure apart from in certain centres in the UK. Certainly not very many are carried out and there is some doubt as to whether the operations are successful. q
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