Your Expert Witness Issue No. 61 by DMMonline

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contents IN THIS ISSUE 7

Opening Statement

NEWS Family courts facing backlog as incidents rise but hearings fall 8 8 Firms invited to ‘Take the Pledge’ to promote equal representation 9 Lord Hamblen addresses the EWI conference LEGAL ISSUES IN CONSTRUCTION Industry bodies react to Building Safety Act 11 13 Builders jailed following death of roofer 13 Independent panel will look into social housing failings 14 How to create that ‘perfect’ home FIRE INVESTIGATION What is the purpose of investigating fires? 15 FLOODING Where do you go for expert opinion on flooded equipment? 16

VIEWPOINT When the Experts’ Meeting goes wrong 18 REMOTE HEARINGS New video service builds on innovations caused by COVID 20 20 Lawyers offer their own assessment 21 Are remote hearings here to stay? FORENSIC ACCOUNTANCY RICS appoints expert panel to implement Gray Report 22 23 Where there’s a claim…there’s a process that needs to be followed 25 What does a forensic accountant do in practice? OIL DISPUTES “Thou shalt not kill; but needst not strive officiously to keep alive” 26

TOXICOLOGY Horse doping: it hasn’t gone away! 27 A to Z WEBSITE GUIDE 28 Our A to Z guide to the websites of some of the country’s leading expert witnesses.

Your Expert Witness Suite 2, 61 Lower Hillgate, Stockport SK1 3AW Advertising: 0161 710 3880 Editorial: 0161 710 3881 Subscriptions: 0161 710 2240 E-mail: ian@dmmonline.co.uk Copyright Your Expert Witness. All rights reserved. No part of this publication may be copied, reproduced or transmitted in any form without prior permission of Your Expert Witness. Views expressed in this magazine are not necessarily those of the publisher. Printed in the UK by The Magazine Printing Company Plc www.magprint.co.uk

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MEDICAL ISSUES 31 Medical Notes

NEWS 35 Trust in court again following patient deaths 35 GMC’s performance praised by regulator’s regulator 37 Station legal advisers at GP surgeries, think tank urges 37 Nurses brand staffing levels ‘unsafe’ 39 Govt handling of pandemic amounted to failure of duty of care, doctors claim ORTHOPAEDICS 41 BOA counters implication that arthritis sufferers should eschew painkillers 41 Orthopaedic body takes the lead in medicolegal education 41 Painkillers vital for arthritis patients awaiting replacements 43 Why is my total knee replacement still painful? PAIN MEDICINE 45 Chronic pain cases need an appropriate expert 45 NSAIDS and steroids may make chronic pain worse, research finds

PLASTIC, RECONSTRUCTIVE & HAND SURGERY 47 Surgeons call for compulsory insurance as cosmetic complications soar INTENSIVE CARE 49 Common causes of medical negligence in intensive care CARDIOLOGY 51 Research shows global impact of COVID on heart health 51 Stress leads to heart disease for legal high-flyer VASCULAR MEDICINE 53 Problems with the use of medical compression stockings to prevent DVT OPHTHALMOLOGY & OPTOMETRY 55 Cataract audit reveals continuing improvement 55 Call for evidence on Opticians Act is an opportunity for reform

PSYCHIATRIC & PSYCHOLOGICAL ISSUES 57 People with serious eating disorders to get more help 57 Competence framework looks to improve inpatient care 57 LPAs: safeguards needed for vulnerable people THE GP EXPERT WITNESS 58 So who is the ideal expert?

EXPERT CLASSIFIED 59 Expert Witness classified listings 63 Medico-legal classified listings www.yourexpertwitness.co.uk

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Opening Statement [AS THIS ISSUE of Your Expert Witness goes to press the news channels are reporting services of

remembrance at Westminster Abbey and at the foot of Grenfell Tower to mark the fifth anniversary of the tragedy that has led to unprecedented upheaval in the building industry. The anniversary follows on the heels of the passing into law of the Building Safety Act – itself a product of the investigation by Dame Judith Hackitt. While no amount of after-the-fact investigating and handwringing can come anywhere close to putting right what happened to the 73 victims of the Grenfell fire, as a society we can only hope that, aside from bringing anyone found guilty of wrongdoing to justice, learning from the mistakes of the past can help prevent a repetition. • The victims of Grenfell were residents of social housing as are many thousands of others living with the worries of unsafe housing. As it is housing owned and operated in the public sphere and ostensibly in the public interest, it follows that standards should be in line with what we as a society expect for decent houses. Sadly, that isn’t always the case and it is difficult to see why. Leading organisations in the social housing sector are setting up an independent panel to find out what is going wrong and what can be done to rectify it. • Fortunately, not all calamities result in loss of life. They may, however, be the cause of substantial financial and practical loss. Aside from fire, flooding is the most obvious event: and it is becoming a progressively more common problem. The damage flood can cause goes beyond what is evident to the layman. Even after electronic components have dried out, for example, subtle changes to the coating can cause differences in the electrical properties, leading to a disaster. Two experts in the field have given us a glimpse into their world. • Not all experts agree with each other, of course, and a diversion of opinion is what fuels debate. In the case of expert opinion for the purposes of a court, however, those experts should stick to what they do know and not assume the role of advocate. Where there is a joint statement issued, that statement should not be influenced by either party’s solicitor, whose job it is to act as advocate. Regular contributor Chris Makin has an entertaining take on the expensive consequences of not sticking to those rules. • Much expert witness work these days is in the area of financial disputes. Whether that is to determine the value of a business for the purposes of a divorce settlement or to track the proceeds of a crime (‘follow the money’), the work of the forensic accountant is the exciting side of that worthy profession. The work of the forensic accountant is itself put under scrutiny for us by a leading exponent. • These days even the determining of the infamous PPI claims is the work of the court. Add to that the fact that more and more claims are being made in the motor finance market and the work of the FCA compliance expert becomes prominent. • Whatever the area of expertise of the expert, what is certain is that they are likely to be spending more of their time online ‘attending’ remote hearings. Born out of the need to dispense justice during the pandemic, remote hearings are becoming the method of choice for many – experts, lawyers, judges and litigants alike. It is certainly one case of necessity becoming a virtue. One expert who has extensive experience of both remote and hybrid hearings expresses the opinion that such hearings may be here to stay. q

Ian Wild

Ian Wild, Director of Business Development Your Expert Witness

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Family courts facing backlog as incidents rise but hearings fall [

STATISTICS FOR October to December last year show there were an estimated 58,762 new family law cases – down 17% compared to the same period in 2020. Meanwhile there were 22,683 divorce petitions filed – with divorce petitions and matrimonial cases down around 25% – while domestic violence cases were down 5% compared to last year. However, the Office for National Statistics found there were 845,734 domestic abuse-related violence instances in the year ending March 2021: a 6% increase compared to the same period in 2020. “We have voiced our concern about the significant backlogs in the family courts,” said Law Society of England and Wales president I Stephanie Boyce, “which pre-date the pandemic. The existing problems have been compounded in the last two years. “The impact on timeliness also continues to be felt, particularly in delays to care proceedings. On average care cases took 47 weeks to reach first disposal in October to December 2021, up five weeks compared to the same quarter in 2020. “Delays can themselves cause significant harm as well as uncertainty for the parties involved. It has previously been estimated by the HM Courts & Tribunals Service that it may take three years to return to prepandemic levels, which is a great cause for concern, particularly for cases that concern children and family matters. “From the outset, we’ve said the UK government must maximise existing court capacity, boosting it through Nightingale courts to allow more in-person hearings to take place safely. The UK government must ensure, so far as possible, that there are sufficient fee-paid and fulltime judges to deal with existing and new caseloads.

“There is also no mention of data on litigants in person (LiPs) – parties without representation – in the latest statistics. Members working in family law continue to report about the high number of LiPs in the court system. “In most cases, LiPs are unable to afford representation and have no choice but to represent themselves. This impacts court time and resources, and makes the provision of representation under legal aid contracts a cost-effective solution to the backlogs. “It would also enable the most efficient use of court capacity across the country. Although this is not within the control of the courts, it is a key concern that should continue to be raised by the sector.” The comments came ahead of the biggest change in the family law system in 50 years on 6 April when so-called ‘no fault’ divorce came into effect. “We will be monitoring closely to see if there is a spike in the number of cases in future statistical reports and will feed this back to our members,” said Ms Boyce. q

Firms invited to ‘Take the Pledge’ to promote equal representation [THE Equal Representation for Expert Witnesses (ERE) initiative has

been created to improve the visibility and representation of women as expert witnesses. Conceived in 2021, the ERE Pledge has been created to be a sister pledge to the Equal Representation in Arbitration Pledge (ERA), which since its inception in 2015 has seen an increased proportion of women appointed as arbitrators. Developed with input from across dispute resolution – and on both sides of the Atlantic – the Pledge aims to encourage action and advocacy to: • Increase the number of women appearing as experts in order to • achieve proportional representation and, eventually, full parity. • Support the hiring, mentoring and promoting of women experts. • Create a coalition of supporters and advocates in the world of • dispute resolution. • Encourage women to aspire to be expert witnesses in their chosen • professions. • Give women who are, or aspire to be, expert witnesses better • opportunities to achieve their goals. • Widen the pool of expert witnesses available and enhance the • reputation of expert witnesses. Firms can take the Pledge at www.expertwitnesspledge.com. q • The next issue of Your Expert Witness will carry a special feature on the ERE Pledge.

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Lord Hamblen addresses the EWI conference ‘The modern expert: personal insights and current issues’ was the subject of Lord Hamblen of Kersey’s address at the Expert Witness Institute’s annual conference, held online on 20 May. The EWI’s Wiebke Morgan describes the main points of his talk.

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LORD HAMBLEN initially summarised his professional background and the various kinds of expert evidence which he had encountered, both as a barrister and as a judge. He further explained how he used to work with experts as a barrister, what he had found particularly useful in terms of expert assistance, and how he would seek best to deploy that assistance. In discussing his experience as a judge, he offered suggestions as to how an expert can best assist Lord Hamblen of Kersey judges, including some key ‘do’s and ‘don’ts’ based on his general experience. Finally, he addressed current issues relating to expert evidence as flagged up in recent case law. In terms of working with experts as a barrister, Lord Hamblen stated that the key issue was understanding. In order to be able to think on their feet in cross examining an expert a barrister needed to be able to think like an expert. His key ‘do’s’ were: clarity; structure; reasoning; and building trust and confidence. His absolute number one ‘don’t’ was to ensure that the expert is avoiding anything which might compromise their independence and impartiality. A second and related ‘don’t’ was to avoid being an advocate. It is counsel’s job to argue the case; that is not the role of the expert. Lord Hamblen’s advice to experts was to ‘make points, explain points, but do not argue them’. The third, and again related, ‘don’t’, according to Lord Hamblen, was: ‘know the limits of your expertise’. Lord Hamblen then proceeded to illustrate the importance of all

these ‘don’ts’ by selecting several recent cases regarding the proper approach to expert evidence. Despite the basic rules regarding expert evidence being well known, and the applicable principles changing little in recent times, Lord Hamblen noted that there has been a notable recent uptick in cases expressing concerns about inadequate expert evidence. He lamented the fact that recent case law suggests that the principles set out in the Ikarian Reefer (now summarised in CPR 35) are frequently not being adhered to. The principles are being duly recited, but not acted upon. Finally, he discussed current case law under the headings of: partiality; relevant expertise; conflicts of interest; and failure to comply with expert duties. He highlighted recent cases with relevant quotes from the judgements. Lord Hamblen concluded that he hoped that the personal insights he had provided and the summary of recent case law would be a helpful basis for thought and discussion at the conference and that it would provide some guidance to those in the important role that they perform as experts. He pointed out that more and more cases seem to involve experts of one kind or another and that they play a very important role in dispute resolution, whether that be through settlement, mediation, arbitration or litigation. q • The full report of Lord Hamblen’s speech can be read at www.ewi.org.uk, from where recordings of the conference can be purchased.

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Industry bodies react to Building Safety Act [

ON 28 APRIL the Building Safety Bill gained Royal Assent and became law. The issue of building safety has been in the forefront of political and policy thinking since the industry was shocked into action by the Grenfell tragedy and the public shocked by the complacency and corner-cutting the subsequent inquiries and reports uncovered. The details of what the Act entails have been the subject of much coverage. The principal planks of the legislation are to define responsibility for building safety more tightly – establishing the much-heralded ‘golden thread’ – extend the time over which responsibility can be established and removing from consumers the consequences of builders’ and manufacturers’ mistakes. The Chartered Institute of Building (CIOB) summarised the main points. “The Building Safety Act 2022 will enshrine in law the Building Safety Regulator, to provide oversight of the new system with powers of enforcement and sanctions. A Construction Products Regulator will also have powers to remove dangerous products from the market. Additionally, a New Homes Ombudsman scheme will provide independent redress for new build buyers who have issues with their new home or developers. “The Act will also look to implement a raft of new measures to protect leaseholders from the costs of historic building safety defects. A new ‘waterfall’ system will be established to dictate who is responsible for the funding of cladding and non-cladding related remediation. Additionally, the Act will enshrine a new ‘golden thread’ of information for the storage and dissemination of all safety related matters in the design and construction of high-risk residential buildings.” The RICS responded thus: “While the Act may not deliver what everyone had hoped for, it marks another positive step forward in resolving the building safety crisis, providing greater protections for leaseholders and delivering a new building safety regime.” The RIBA explained what the new regime will mean for consumers/ leaseholders. “Last month, the government announced a deal with housing developers in which they committed a minimum of £2bn for remedial works. Over 35 of the UK’s biggest homebuilders have so far pledged to remediate all buildings 11 metres or taller that they have played a role in developing in the last 30 years. “Housebuilders will also pay up to £3bn to an extended Building Safety Levy that will be chargeable on all new residential buildings in England. The money will ensure that leaseholders are spared remedial costs even when developers cannot be traced. The government has said it will block housebuilders from gaining planning

permission or building control approval if they refuse to pay into the levy fund.” All commentators were agreed that the Act marks the beginning and not the culmination of the process of overhauling the system. Most of the proposals will be the subject of secondary legislation. Rona Westgate of Taylor Wessing offered a lawyer’s perspective, saying: “Although the Building Safety Act has achieved Royal Assent there is still more work to do before the Building Safety Act is fully implemented. The government's transition plan published in July 2021 set out an outline for the provisions to come into effect in stages with a number of provisions coming into effect in the first 12 months, but the majority of the provisions coming into effect 12-18 months after Royal Assent. Some provisions, however, including the extended limitation provisions, come into effect two months after Royal Assent.” The RICS again expressed the industry’s expectation: “The industry will need a clear brief from government on the timeline moving forward, when the legislation will be ready, and any consultations that will be brought in to allow industry to support at pace. It is critical for RICS and other organisations representing the professions impacted by the Act, to have the opportunity to offer their continued support in finding and shaping the solutions alongside government.” Eddie Tuttle, director of policy, external affairs and research at CIOB summed up the general reaction to the Act: “We are pleased the Building Safety Bill has received Royal Assent to ensure building safety is a priority and to provide much needed accountability in the system. This provides long overdue certainty for the industry, though the next 12 to 18 months will be crucial in preparing built environment professionals for the new roles and competencies that will be required.” q

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Builders jailed following death of roofer [A BUILDING COMPANY director has

been jailed for five years for manslaughter gross negligence following the death of a roofer in a fall at a building site in 2018. The director of a roofing company was also jailed for an offence under the Health and Safety at Work Act. The sentences were passed at Brighton Crown Court on 7 June following a trial the previous month. Graham Tester had been carrying a roll of roofing felt up a ladder secured with only two nails hammered into a timber frame at the site of a former hotel in Hove. He lost his balance and fell 18ft to the ground. Site manager Steve Wenham, a director of main contractor Total Contractors Ltd, was jailed for five years. John Spiller, a director

of roofing sub-contractor Southern Asphalt – who was not on site when Mr Tester fell – was acquitted of manslaughter but found guilty of health and safety breaches. He was given a 15-month prison sentence. Justice Mark Wall said: “There was no safe means of their accessing the roof on which they were to work. Neither was there a safe way for them to transport up to the roof the rolls of felt they were to lay. They set up a ladder by the side of the building and secured it by doing no more than banging in two nails. They then used the ladder as a means of access for themselves and to carry rolls of felt weighing up to 40kg onto the roof on their shoulders. “Once on the roof there were no safety barriers in place even though their work

involved them working right up to the edge of the roof.” He told Wenham: “Proper protection could easily have been provided and the job delayed for a short while to enable it to be put in place. It was in your gift to have taken such a decision but rather than delay, you decided to press on with the work. That decision resulted in the death of Mr Tester.” He told Spiller: “You visited the site later that day. You went onto the roof using the dangerous ladder they had erected. You saw your men working on the roof when there was no scaffolding or protective edging in place. “You said nothing to them at the time despite the fact that you accepted at trial that it was your duty to stop them working until the situation was rectified.” q

Independent panel will look into social housing failings [

ON 8 JUNE two leading social housing organisations – the Chartered Institute of Housing (CIH) and the National Housing Federation (NHF) – announced the settingup of an independent panel to make urgent recommendations for tackling poor quality housing in the sector. Social housing is a sector driven by a social purpose to provide good quality, affordable homes, the CIH said in a statement, and it is clear that has not been the experience of every resident. Scrutiny from the media and social media in the last 12 months – including by an ITV News investigation and campaigners such as Kwajo Tweneboa – has shown that hasn’t been the case. Organisations have redoubled efforts to find and repair serious problems in their homes, but the sector wants to do more to understand why these issues have been happening and what changes can be made. The panel will be chaired by Helen Baker, a highly-respected and experienced figure in housing, social care, health and education, and will comprise people with lived experience and expertise in social housing. It will meet over the summer with residents, community leaders and other partners, including local authority housing providers, to consider improvement actions that can be taken so that residents always receive the high-quality services they deserve. Gavin Smart, chief executive of the Chartered Institute of Housing, said: “All tenants of social housing should be able to live in a goodquality, well-managed home and be treated with dignity and respect. Where this is not the case, we must put that right. “I welcome the insight an independent panel will bring, taking time to engage with residents, communities, partners and staff to understand where improvements are needed and to make recommendations to the sector that will fix what is wrong and develop greater trust between landlords and tenants.

“As the professional body for housing, we look forward to supporting the sector to progress the recommendations provided to deliver the right mix of knowledge and skills, behaviours, and values to ensure a quality home and service for all.” Kate Henderson, chief executive of the National Housing Federation, added: “Everyone should expect a safe, secure, goodquality, and affordable home. Housing associations play a vital role in every community in the country providing essential social housing. “We know most people have a good experience in their housing association home, but we have clearly seen that this has not been the case for every housing association resident and that is simply not acceptable. The sector wants to learn how these problems have happened and what action they can take to do better. “I look forward to reading the panel’s recommendations later in the year and working with colleagues across the sector to take the action that’s needed to make sure every housing association resident can trust that they will live in a secure, good-quality home.” The announcement came ahead of publication of the Social Housing Regulation Bill, which will give the Regulator of Social Housing stronger powers to regularly inspect landlords on things like health and safety and repairs performance. q www.yourexpertwitness.co.uk

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How to create that ‘perfect’ home Peter is a teenage boy who, following an accident, has physical and mental disabilities. He is a client of forensic engineering practice Gateley Smithers Purslow (GSP). Here, GSP’s Barry Ford outlines the process involved in creating a suitable home for Peter and his family.

[IN 2018, GSP’s expert witness department analysed medical reports

provided by Peter’s legal team to determine what accommodation he would need. A property search found land in North Yorkshire – an area where Peter’s family wanted to live – and their architecture team helped prepare a feasibility study to determine if it was possible to build a house of the size required. They submitted a project budget for a two-storey scheme, costing approximately £800,000, which was agreed by both parties and included in the final settlement figure. GSP’s brief included specialist accommodation for Peter, with closelyannexed space for two carers to include bedsits, a kitchen and shower room. Peter’s mother also required her own living space, kitchen, bathroom and bedroom – connected to the main house, but with its own entrance.

In 2019, the expert witness team handed over the project to their architecture colleagues. They met Peter, his mother, case manager and carers to discuss the project brief and better understand Peter’s particular needs and the family’s aspiration for what would become their ‘forever home’. The most important features for Peter were his trampoline pit and a specialist bath that raised and lowered for easy access – with flashing, coloured lights and a surround sound music system. Having amended the design so it covered all accommodation needs and was aesthetically sympathetic to the local vernacular, the next step was to consider the building phase and the property’s location within a flood risk area. Following design approval, the project was submitted for planning approval. While waiting for that, GSP agreed with the client that its architects would begin the detailed building design, meaning Building Regulations approval could be applied for and production information developed without delaying the project. GSP is a proponent of sustainable design and after client discussions they increased the insulation levels above Building Regulation standards and specified triple glazing to the windows to reduce heat loss and noise within the building. PV panels were installed on the south-facing roof to reduce electricity running costs and the building was designed with a sustainable urban drainage system, so no rainwater discharge went into the mains sewers. The detailed design is an important stage, as the client needs to appreciate all the building finishes and decide upon aesthetics such as floor/wall finishes and bathroom/kitchen fittings. Although the house is for a person with special needs, it is a home and not a clinical environment. GSP received planning approval in 2020 and invited trusted contractors to tender for the works. In addition to its client, GSP also reported to the trustee appointed by the Court of Protection and all costs relating to the project had to be agreed before proceeding. After a six-month build, and as the project neared completion, GSP arranged a ‘topping out’ ceremony for Peter. During that time, all parties kept in regular contact and followed a spirit of collaborative working. GSP says that ‘communication and involvement is key to a successful project and one of the most important things a project manager can do is listen’. In August 2021 Peter, his mother and care team were given the keys to the completed building. After looking around his new home, Peter said he thought the house was ‘perfect’. q • Gateley Smithers Purslow is an engineering, surveying and architectural practice handling high net worth and complex building, construction and property claims for the insurance market. The practice employs 125 chartered engineers, surveyors, architects and support staff from its Glaston head office and branches in Chester, Exeter, Leeds, Llandudno, London, Manchester, Newcastle, Nottingham and Reading. In 2016 and then 2019 GSP secured Platinum Investors in People status.

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What is the purpose of investigating fires?

By Anthony Murray, Fire Investigation Specialist at Strange Strange & Gardner

[FIRE SCENES ARE USUALLY investigated to find out what,

why and in what order, the events that led to a fire took place. This is important to prevent future incidents. An investigation can also determine who may have been responsible and whether they were negligent. The data gathered from an investigation allows for the development of codes and standards and the improvement of defective products. Fire, due to its destructive nature, can not only obliterate evidence, but it can create a misleading pattern of damage. To examine and evaluate a fire scene effectively, it is imperative that the investigator knows the chemistry and behaviour of fire and the range of possible effects. In order to pinpoint the cause and the origin of a fire, one of Strange Strange & Gardner’s experienced investigators will conduct a comprehensive investigation. They will identify and investigate liability. In the event that the fire scene is no longer accessible, a desktop review of the case can be conducted by examining materials such as the fire brigade report, photographs, witness statements and retained evidence. The aim is to identify the cause. It is possible a proprietary product such as an appliance may be faulty in which

case we would recommend further investigation prior to seeking any potential subrogation. We would also consider relevant building practice and consider if there was a construction fault. SS&G’s comprehensive reports are cost-effective and are delivered promptly. They are only a telephone call away. q

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Where do you go for expert opinion on flooded equipment? By Mamoon Alyah PE CEng IRMCert and Rose Campbell IRMCert

[AROUND THE WORLD

we have witnessed an increase in contamination losses due to flooding in manufacturing plants, data centres, office buildings and other industrial and commercial properties. Previously unforeseeable rain and flooding has been reported in many parts of the world and we can only expect that there will be more natural catastrophes such as occurred in Germany, UK, USA and throughout the Middle East during the past few years. We can expect an increase in disputes related to the reliability and cost of reinstatement of mechanical, electrical, data and communication systems following contamination, and whether a full replacement of affected equipment is necessary.

Risk of damage from contamination

The question of actual damage to contaminated equipment is complex and extends beyond whether or not the equipment appears to be functional immediately following exposure. Risk of damage varies depending on numerous factors, including type and level of exposure to contaminants – water, chemicals etc – and the type of equipment in question. Some types of damage include: • Mechanical binding, where mechanical components such as relays and circuit breakers become clogged due to the settlement of the residue of dissolved salts in floodwater. That is very dangerous, especially in electrical equipment. Although the equipment affected may still work, it might not respond properly and fail to trip when necessary. • Obscuration from debris affects the interfaces and reduces the overall quality of signal transmission. • Galvanic shorts, where surface water is bridged by conductive debris and acts as a circuit bridge. That is less of a concern if the water that has come in contact with a piece of equipment is clear, fresh water that has no contaminants. In flooding conditions, however, it is extremely likely that the water will be contaminated. • Increased contact resistance, where electrical contacts are coated with contaminants – increasing the contact resistance and leading to hot spots which may cause fires. • Corrosion, which occurs when contaminants react with water to form acids that corrode non-protected metal. That can set in on different pieces of equipment, resulting in irreversible damage. • Overheating, which occurs when, after the water dries out, layers of contaminants blanket the surfaces of electronic components, preventing them from dissipating heat during operation. Prolonged operation while overheated can lead to premature failure of electronics.

Investigating damage

To investigate flooding damage to different types of equipment, a number of challenges must be recognised and overcome: starting with the need to identify the correct expert who can assist with the damage assessment and evaluation of different reinstatement options. The right expert must possess enough knowledge about the contaminated equipment and – more importantly – how the contamination, regardless of its type, can affect the equipment in the long term. It may not be possible for experts to examine the property and equipment straightaway. In that case, they must have access to detailed information, including photographs of the affected property, equipment

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and the circumstances that led to the contamination. Experts can only carry out their investigation after the water has receded or the fire has been put out. At that time, the property must be secured and made safe to access. It is important to mitigate the damage to the equipment, to prevent irreversible corrosion from setting in and to prevent overheating and electrical shorts. Experts can create a plan to preserve equipment and prevent further damage from settling in. Where possible, all power should be disconnected and controls should be in place for temperature and humidity. Before any testing can be carried out, equipment must be dried. That can be accomplished via a number of options, depending on the type of equipment and the environment, including: • Baking, where heat is applied in a controlled manner to the equipment • Ventilation, where air flow is increased until the equipment is dry • Drying current, where a low voltage of electricity is applied to the machinery to evaporate water

Assessing the damage

The assessment of damage involves the inspection and examination of equipment to establish how far contaminants have penetrated the equipment and what parts were affected. Contamination damage to equipment raises a lot of technical complications that make it difficult to identify the true extent of the damage. Many factors must be considered including: Type of contamination Floodwater is rarely fresh, clean water and will almost always have dissolved contaminants in it. The type of contaminants will vary depending on the surrounding area from black water – the category of water that includes floods – containing pathogenic agents, to domestic drinking water which will have low levels of different chemicals. The level of contamination This is one of the most critical variables that will determine the effect contaminants will have on a piece of equipment. The higher the concentration of contaminants, the higher the risk of formation of acids that can lead to corrosion and electrical shorts. Type of facility The extent of damage will differ depending on the type of facility. Industrial properties often rely on many different types of equipment and machinery to function and damage could result in stoppage of all business until the equipment can be repaired or replaced. That becomes a particular concern when a plant is manufacturing highly-regulated products such as food or medication. While commercial and residential buildings do not rely on the same machinery as manufacturing plants to stay in business, many pieces of equipment are critical to maintain continuous operation, such as IT and communication servers necessary to transact. Location of equipment The location of equipment within a facility is going to influence the extent of exposure that equipment will have endured. For example, equipment housed in the basement will be more likely to be completely submerged in the event of a serious flood, compared to equipment housed on upper levels.

Reinstatement

Can equipment be restored to pre-loss condition? Yes: by looking at the results and comparing them against global standards, experts can determine whether equipment can be considered clean – and therefore liable to work again – whether it can be restored or decontaminated with good results, or whether the extent of contamination is so severe that restoration is not recommended. There are some situations where replacement is the better option, such as if the equipment has suffered serious damage from corrosion, as that cannot be reversed or repaired. When there are short-circuits and corroded surfaces, reinstatement is also unlikely to be viable. Transformers may be reinstated; however, because they often use paper insulation, there might be the possibility of irreversible damage and further testing will have to be done. In other situations, the answer will be more straightforward: wiring designed to be submerged can be reinstated, while cables that are meant to remain dry cannot. Similarly, any submerged wiring device such as wiring sockets must be replaced. For those situations where it is unsure whether equipment is damaged beyond all repair, additional testing can be carried out. With electrical equipment, the insulation, current and voltage should be tested. Sometimes a ‘hi-pot’ test will be carried out, which stresses the equipment to higher levels to ensure reliability has not been affected. Mechanical components will often see the trip mechanisms checked to ensure that they are working properly and have not been damaged. Chemical testing can be used to understand the full extent of the contamination. One method that is often utilised is the use of wipe samples, which will identify the type and extent of chemicals on the equipment. There are many tests that can be carried out, but it is important to decide which are necessary, feasible, and will yield the information that will make the testing worth the expense. When choosing which tests to carry out, it is important that all tests should answer the question of the extent of contamination, and therefore whether the

equipment has been affected or not. Testing protocols must be prepared and agreed upon. While there are many tests that can be carried out on flooded equipment, those tests are expensive and may not provide valuable information.

Reliability concerns

An important question following a flood is whether the exposure will affect the long-term reliability of the equipment. The supplier or OEM may no longer want to cover the equipment by an existing warranty or service contract, based on concerns that the damage sustained affects the reliability of the equipment. Once equipment has been tested, a combination of restoration, repair and replacement will often be used to return a property to a pre-loss condition. Do not assume that the correct answer for what to do about one piece of equipment will apply to all others, as the extent of damage is dependent on many different factors – including the amount of exposure to contamination and the type of equipment being exposed. q • Mamoon Alyah PE CEng IRMCert is the managing director and principal engineer at CEERISK Consulting Ltd, a global engineering consultancy headquartered in London, which provides expert witness services in matters involving damage and failure of electrical and mechanical equipment. Mamoon has been instructed as an expert witness in jurisdictions around the world, including the USA, UK, UAE and Australia. He has worked on large and complex losses, including flooding to large electrical systems following hurricanes in the USA and flooding in the UK. Contact Mamoon by email at mamoon.alyah@ceerisk.com. • Rose Campbell IRMCert is a risk analyst and services manager at CEERISK Consulting. She specialises in the assessment of risk of failure of electrical and mechanical equipment in different types of commercial and industrial properties in different sectors. She has been involved in developing contingency plans and business recovery programmes for medium and large industrial facilities throughout the Middle East. Contact Rose by email at rcampbell@ceerisk.com.

www.yourexpertwitness.co.uk

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When the Experts’ Meeting goes wrong By CHRIS MAKIN chartered accountant, accredited civil mediator and accredited expert determiner “It is ordered that the experts of like experience shall liaise, and shall produce a joint statement, setting out those matters on which they are agreed, and those matters on which they have failed to reach agreement, and their reasons for not so agreeing.”

[ THIS IS FAIRLY STANDARD WORDING in civil cases. In

criminal cases the experts are also ordered to set out the reasons for which they have reached agreement, which is interesting; but let’s stay with civil cases.

About Chris Makin

[CHRIS MAKIN was one of the first 30 or so chartered accountants

to become an Accredited Forensic Accountant and Expert Witness – see www.icaew.com/about-icaew/find-a-chartered-accountant/find-anaccredited-forensic-expert. He is also an accredited civil and commercial mediator and an accredited expert determiner. Over the last 30 years he has given expert evidence at least 100 times and worked on a vast range of cases. For CV, war stories and much more go to the website at www.chrismakin.co.uk – now with videos! q

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So the experts have to get together and produce a joint statement, and that will form part of their report, so that the Expert’s Declaration and the Statement of Truth must be included or at least confirmed as still applying. How important is this joint statement? Very; I prepare for a joint discussion as carefully as for a High Court hearing. Who produces it? The experts, of course. What part do instructing solicitors play in this? Virtually none. I say virtually none, because they may participate in preparing an agenda of matters to be discussed, though in practice after hundreds of such meetings I have never been asked by my instructing solicitor to include anything. And that makes sense; the experts have produced their reports, they have reached and expressed their opinions in their separate reports, the differences are obvious, and they become the agenda. But what happens if one of the experts asks their instructing solicitor for help or comment on what is being discussed, or if the solicitor takes it upon themself to interfere? The answer is that the offending expert or solicitor will put the progress of their case at risk, and will waste a great deal in expert’s fees. This was the situation in the recent case of Patricia Andrews & Ors v Kronospan Limited [2022] EWHC 479 (QB). It was a group action by 159 residents living close to the defendant’s wood processing plant. It was alleged that the defendants were liable to the residents in nuisance through dust, noise and emissions. There was an expert on both sides, and they were ordered to produce their reports in April 2021 with a joint discussion to follow. But their joint statement didn’t follow, and after several months the defendant’s solicitors discovered that the claimants’ expert had been conferring frequently with his instructing solicitor. It started when the expert, unsolicited, sent a draft of the joint

report to his solicitor, and over many months there had been frequent email and telephone exchanges. Many were of simple procedural matters, but the solicitors had made 68 comments on the various drafts, and the Master found that ‘…many others commented or made suggestions on issues of substance’. This was when the matter came before Senior Master Fontaine, when the defendant applied for the claimants’ expert to be refused permission to appear at court; and this was after an appointment which had gone on for three years, and for which the expert had charged £225,000 – note to self: very much higher than any expert fee I have ever charged over the last 30 years! The claimant solicitors were suitably shamefaced. They accepted that ‘it was wrong for an expert to solicit input from their instructing solicitors during the process of drawing up a joint statement, just as it is wrong for solicitors to provide that input’. And the Master said that the expert’s approach ‘strongly suggested that he regards himself as an advocate for the claimants, rather than an independent expert whose primary obligation is to the court’. The Master said that the court could have no confidence that this expert would act in accordance with his obligations as an expert to the court. And further, ‘the basis upon which the claimants received permission to rely on Mr X as an expert witness, namely his duties under CPR 35.3 and PD 35 at paragraphs 2.1 and 2.2, has been undermined’. And then ‘it is important that the integrity of the expert discussion process is preserved so that the court, and the public, can have confidence that the court’s decisions are made on the basis of objective evidence’. The words of the above two paragraphs in the Practice Direction are so fundamental that it is worth setting them out here: 2.1 Expert evidence should be the 2.1 independent product of the 2.1 expert uninfluenced by the 2.1 pressures of litigation. 2.2 Experts should assist the court 2.2 by providing objective, unbiased 2.2 opinions on matters within their 2.2 expertise, and should not 2.2 assume the role of an advocate. These words are not new. Cresswell J used similar words in the seminal case of The Ikarian Reefer [1993] Lloyd’s Rep 68, and these virtually identical words were spoken by Lord Wilberforce in the House of Lords case of Whitehouse v Jordan in 1980: “The report of the expert must be, and must be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation.” The duty to act correctly falls on the solicitor as much as on the expert. See this, from Imperial Chemical Industries Ltd v Merrit Merrall Technology Ltd [2018] EWHC 1577 at (237): “The principles that govern expert evidence must be carefully adhered to, both by the experts themselves, and the legal advisers who instruct them. If experts

are unaware of these principles, they must have them explained to them by their instructing solicitors. This applies regardless of the amounts in stake and in any particular case, and is a foundation stone of expert evidence.” A foundation stone – serious stuff. What happened in the Patricia Andrews case was that there was a serious danger that the claimants would be left without expert evidence, which could have been catastrophic. But because a hearing date had not yet been fixed, the Master allowed them to instruct new experts. But what a waste of £225,000! I have said this before, but it is worth repeating. An expert must be accomplished in their own profession, but also in the ‘second profession’ of expert witness. This Mr X acting as expert for the claimants should have known better than to confer with his instructing solicitor and, of course, the solicitor should have known better than to indulge him. This was an expensive mistake, and it could have been a tragedy. Choose your experts with care! Choose experts who know what they are doing! q

www.yourexpertwitness.co.uk

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New video service builds on innovations caused by COVID [IN DECEMBER HM Courts and Tribunals Service (HMCTS)

published an evaluation of remote hearings held during the COVID-19 pandemic. The evaluation reported the experience of public users, the judiciary, legal representatives, HMCTS staff, and support professionals and their attitudes towards remote hearings. Key findings included: • Public users attending remotely were slightly more likely to be satisfied with the overall experience of their hearing than in-person users: benefits included greater convenience, reduced costs and removing the anxiety of being in a room with another participant, with whom they may be in conflict. • Legal representatives were positive about remote hearings, with 93% saying they felt remote hearings were an acceptable alternative during the pandemic. Views were mixed, however, about how they should be used in the future. • Just over half (51%) of judges thought remote hearings were effective at creating an environment comparable to in-person hearings, but raised concerns about their impact on well-being and increased workload. The evaluation also recommended more support for vulnerable users and increasing awareness of the support available to public users when attending a remote hearing. HMCTS says it will use the evaluation findings to plan developments to its services. Some of the findings have already been addressed by the new Video Hearings service that is replacing the Cloud Video Platform during the course of this year. According to HMCTS: “The Video Hearings service was developed as

a bespoke, multifunctional service built specifically for court hearings as part of the HMCTS reform programme. The service is designed to meet the specific needs of court and tribunal hearings and addresses some of the recommendations found in the report. “The Video Hearings service better reflects the formality of a court hearing and improves on the services used during the pandemic. For example, it provides virtual consultation rooms and built-in guidance for court users.” q

Lawyers offer their own assessment [THE LAW SOCIETY has been carrying out its own monitoring of

the changes – expanding its pre-pandemic work on the government’s court reform programme. That evaluation covers what the changes mean for solicitors and where remote hearings are working well and not so well. It also explains the Law Society’s view, concerns and recommendations and what the society has been doing since the first pilot in 2018. The society points out: “So far, HMCTS has tried to avoid the need for specialist IT software or equipment. However, the increased use of technology may require some professionals to upgrade their IT and/or broadband service to make sure they work with the HMCTS system which can be costly for small/medium size law firms. “This may cause problems for some firms that have seen a further reduction in income due to the pandemic and may not be in a position to upgrade or buy new equipment.” However, the society says that feedback from its members suggests that some cases can be dealt with perfectly well remotely, and that should remain a permanent feature of the justice system. They include simple procedural hearings involving only judges and advocates, cases involving more sophisticated parties and/or legal entities, such as in the English and Welsh commercial courts, and more technical or administrative proceedings. Instances of where remote hearings work less well are tribunals, criminal, county and family courts and complex cases such as contested family hearings. Hearings involving vulnerable parties or witnesses are likely to be best served by an in-person hearing. The Law Society says that the use of remote hearings should be considered on a case-by-case basis and should only happen when the court is satisfied that justice can be served via a remote hearing, weighing the importance and urgency of the hearing against factors suggesting justice might be better served through a physical hearing. q

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Are remote hearings here to stay? Roger Emmott, managing director of Roger Emmott Associates Ltd and practice head of SteelExpertWitness, has been involved in expert witness work in the metals and mining sector for over 10 years. He has been cross-examined on five occasions: three at in-person tribunals and two at remote hearings – one of which was a hybrid hearing. He has also attended seven remote hearings on other matters. In this article he describes his experiences at those events.

[MY FIRST EXPERIENCE of a live tribunal was at a case

management hearing at the Royal Courts of Justice in London. While I was not cross-examined, it was extremely helpful to understand the setting, the process and the context for the tribunal that came some months later. That is something that is not quite so easy to do with a remote hearing. The setting was very formal and the experience quite stressful. Preparation, as always, was key. My next experience was also a live hearing, at which I had been asked to make a presentation prior to cross-examination. Much preparation and rehearsal had gone into it. I was allowed sufficient time to make my presentation and the tribunal head asked me many questions about the context. It was beneficial to be across the room from him and to be able to read his body language, to speak with him directly and ensure that my explanations were being fully understood. My expert work next took me to a live hearing in Hong Kong. The hearing ran over three days and I was cross-examined on the final day. It had been extremely helpful to be in attendance throughout the tribunal prior to cross-examination: I had also been able to work closely with counsel, whom I had not met prior to the hearing, to explain to him many of the complex technical details of the matter. It also enabled him to prepare his cross-examination from an improved and deeper level of understanding of the many factors involved. Indeed, the use of experts at a very early stage in disputes should not be underestimated, regardless of hearing type. It can be highly cost-effective when experts are appointed and integrated early into the case team. In my experience, experts are often appointed too late in proceedings. My first remote expert hearing was held with the parties in four different locations across several time zones – and a significant time difference to the UK. In all there were 16 participants, with thankfully only three others allowed to participate during my cross-examination: they being the tribunal head and counsel from each side. That made it much easier to focus on what was happening. I also had in front of me, on a tablet, a live transcript of what I was saying, relayed almost in real time from the remote location. On that occasion I did not have access to any live archive case material – that was to come later. It can be a little disorientating trying to follow a transcript while responding to cross-examination questions. I found it was better to leave any questions on the transcript to my counsel, who was following the transcript assiduously – making sure that what I said was being correctly transcribed, and secondly raising any points either of inaccuracies or questions which happened on a small number of occasions during the three-hour cross-examination. I found it was necessary to focus; to take time before responding and to think very carefully about answering the questions. It was much harder to gain the context of the hearing than at a live event. It was professionally run and managed with no technical issues. The most recent remote expert hearing that I attended was at the Permanent Court of Arbitration in The Hague. The dispute was complex and many parties were involved. Owing to COVID restricting international travel, it was decided to hold a hybrid tribunal: one where the tribunal itself would be physically located in The Hague but there would be remote access for many of the parties who for COVID-related or other reasons were not able to attend in person. There were three arbitrators, one of whom was the chairman. I

was cross-examined with a colleague. We shared a meeting room in London set up for the purpose. Rather like a school exam, all nonrelevant paperwork was banned. We were allowed only our reports in front of us – not even notepaper. In front of us we had three screens: a large screen showing the tribunal itself and two smaller screens – one for the transcript and the other for the document archive, being managed by a third-party document company. The communications and technology worked well, with very few technical interruptions which were rapidly resolved. Prior to my own cross-examination I had been able to watch the presentation and cross-examination of the opposing expert. That was very helpful for me to understand his perspectives. I had also been asked to make a presentation. That needed to be very carefully timed as the agreements on timing had been negotiated in painstaking detail with the other side. The writing and editing had received a great deal of care and rehearsals had been essential. The cross-examination itself was relatively straightforward and all the preparation was not in vain. The chairman intervened occasionally, mainly on points of clarification. I have also attended seven remote hearings on other matters. While they did not involve me acting as expert, the principles were similar. There is often a limited amount of time allocated for the remote hearing. The judge may not have had time to read everything that has been prepared for the case. There is an opportunity to present your arguments, but these must be expressed succinctly. In conclusion, are remote hearings here to stay? Yes, but not exclusively. A client in a leading law firm recently expressed the opinion that remote hearings will be used increasingly for procedural matters, to avoid the complexity and costs of bringing many people together. The technology is well developed and tried and tested. Hybrid hearings as I have described are surely set to continue. There will always be a natural desire for people to meet face-to-face and there are many benefits to that; but the economics of running hearings will likely determine that as much as possible is handled remotely, with only large and complex disputes warranting the more traditional approach. Preparation, as always, is key. The more experience one has, the more likely one is to be able to deliver a focused and robust independent view. q

www.yourexpertwitness.co.uk

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RICS appoints expert panel to implement Gray Report [A PANEL OF nine leading experts have been appointed to lead

the implementation of the RICS Valuation Review recommendations. Conducted by Peter Pereira Gray last year, the review into the way valuations of property assets for investment purposes are conducted made 13 recommendations which seek to future-proof valuation practice and improve confidence in valuations upon which third parties rely, for example pension funds and the stock exchange. Led by Richard Waterhouse FRICS, a valuation expert and member of the RICS's independently-led Standards and Regulation Board, the new team form an interim committee dedicated to implementing Peter Pereira Gray's vision. Richard Waterhouse commented: “I am delighted with the appointment of the committee to implement the Valuation Review's recommendations. The committee draws expertise from the range of stakeholders, including regulatory, and across a full spectrum of members and firms. “The committee will ensure the public interest is placed at the centre of the implementation’s design, valuations for the future continue to be underpinned by robust practice and are trusted. Improved education, transparency and inclusivity will guide the implementation combined with a proportionate and clear approach for the regulation. “With a significant proportion of the world’s wealth held in property it is essential that valuation for financial reporting and decision making continues to attract confidence as markets evolve.” The nine experts appointed to the new committee are Sara Ensor MRICS of JLL, Ian Hardman MRICS of Colliers, Mark Fox MRICS of

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Foxglove Property Consultants, Jonathan Theobald MRICS of Derwent London, Roy Albert MRICS of the Valuation Office Agency, Nick French FRICS of the RICS, Leigh Miller FRICS of Ernst & Young LLP, John Boulton of the ICAEW and Rod Lockhart MRICS of LendInvest PLC. Janet Paraskeva DBE PC, chair of the RICS Standards and Regulation Board, added: “I am pleased to announce the establishment of the Valuation Review Implementation Committee, an interim committee who will be tasked with preparing a plan for effective implementation of the recommendations of the Review of Real Estate Valuations and ensure, on behalf of the Standards and Regulation Board, progress in line with plan.” The committee's work will be informed by stakeholder consultation on proposed changes to the RICS standards and regulation framework, ensuring it continues to act effectively in the public interest. Its appointment follows an initial consultation on the implementation of recommendations to require a regular rotation of valuation advisors and the introduction of new governance arrangements for the commissioning of valuation reports. That consultation ended on 20 May and the new committee will soon meet to review feedback and set out its next steps afterwards. The steps needed to respond to the remaining recommendations will progress over the coming months, depending on the complexity of planning, strategic and operational mobilisation, and the resources required. The committee will work with energy and purpose in delivering the necessary changes while ensuring it takes a proportionate approach, the RICS said. q

Where there’s a claim…there’s a process that needs to be followed Over recent years there has been a notable increase in the number of customers coming forward who believe they have been unfairly treated and mis-sold some form of financial product or service. They range from the now-infamous PPI to pensions, mortgages, investments, pay-day loans and, increasingly, motor finance. Here, Andrew Smith, the CEO of Paxen Group Ltd, explains recent developments and how his company can help negotiate the process.

[ MANY CUSTOMERS who believe

they have a claim initially go through the complaints process and ultimately engage the Financial Ombudsman Service (FOS) to arbitrate on their behalf. In some cases that can work in favour of the customer; however, there is a known issue of inconsistency in the approach of the FOS, leaving many claimants unhappy or even with a poor outcome. The alternative is to submit a claim via the courts, for which we are seeing an increasing appetite. All PPI claims now have to be submitted that way and we are seeing more and more lawyers and specialist solicitors taking that approach,

with a view to reaching a fairer and more consistent settlement for their clients. There is, however, the matter of proving the wrong-doing. With the FOS they generally start from a position of the complainant being right, leaving the burden of proof with the firm to prove the complainant is wrong. With the courts that is not the case, and both sides are expected to provide detailed and robust evidence to support their claim and defence. That is where we can assist. As experts in the field of financial services compliance and FCA regulation we are able to assess and review a case and provide a credible and reliable expert report. We have

experience of drafting Part 35 compliant reports, court appearances and high-volume expert opinion reports for multiple claimants of a similar type. In the motor finance market we have been regularly producing many hundreds of reports per month to support mis-sale and non-disclosure claims: in fact, we are recognised as a leading authority on the subject – to the point where we are appointed by Trading Standards as an expert for any relevant claims they have. We offer a competitive and pragmatic fee structure and an initial free-of-charge consultation to understand a client’s needs and how we may be able to assist. q

www.yourexpertwitness.co.uk

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What does a forensic accountant do in practice?

Forensic account and accredited expert witness Fiona Hotston Moore of FRP Advisory provides an overview of the type of cases on which she is instructed as an expert.

[FORENSIC ACCOUNTANTS are typically engaged to undertake

Key additional skills for the forensic accountant include professional credibility, robustness, the ability to negotiate, flexibility and composure.

matters. Typically, these include valuing a business, assessing maintainable earnings and tax calculations. I can act as the Single Joint Expert or as a Party Expert or Adviser. Shareholder disputes: In disputes between business owners I may be engaged to value the business or to give an opinion on the misappropriation of funds. False accounting and suspected fraud: Forensic accountants can be engaged to review the internal accounting where it is suspected that there has been manipulation of the reported results or to investigate and assess suspected fraud. Professional negligence: In matters where it is claimed there were failings in the work of a finance professional, the forensic accountant may be asked to give an opinion on the standard of the work and the loss arising from the poor advice. I have assisted on a number of cases involving alleged tax professional negligence – including in relation to firm schemes, remuneration trusts, employee benefit trusts and entrepreneurs’ relief. Commercial disputes: Business disputes arise in all sorts of situations including termination or breaches of contractual arrangements. Typically, in commercial disputes I will consider the business valuation and possibly the impact of the alleged breach on the loss to the contracting party. Tax disputes: In disputes with, or investigations by, HMRC or the NCA (National Crime Agency) I can be engaged to assess the financial information, to give independent advice to the taxpayer and potentially to act as expert witness in a tax tribunal or at court. Insurance claims: In insurance matters, a forensic accountant may be engaged by the claimant or insurer to assess the loss. Criminal cases: In criminal matters, a forensic accountant may act for the prosecution or defence to give an expert opinion on financial matters. I have assisted on cases including money laundering, Proceeds of Crime Act and tax fraud.

What areas of work do I get involved in?

In conclusion

financial investigations and to provide input in litigation. A forensic accountant is usually an experienced qualified accountant or auditor who has chosen to undertake further formal training to specialise in forensic accounting. The key skills of a qualified accountant that are required in forensic accountancy are strong written and verbal communication skills, an attention to detail, initiative, business acumen and a good knowledge of financial reporting and tax legislation. Forensic accounting is not for every accountant.

What is the difference between auditing and forensic accounting?

The key difference between auditing and forensic accounting is that in audits there will be a clear framework to the work and audit process to be followed, whereas in forensic accounting there is no such framework. Every forensic assignment is different. The forensic accountant must, at the outset, agree with the instructing party the objectives of the assignment, plan an approach and be prepared to change tack depending on the availability of evidence and their findings.

Can forensic accountants do expert witness work?

Forensic accountants can also do expert witness work. Expert witness work is where the forensic accountant is required to prepare a report for court purposes and may be required to attend court to give evidence on his report. Facing cross examination can be daunting even for experienced professionals. Ideally the individual should have undertaken formal training in expert witness work and be accredited.

What extra skills does the forensic accountant need?

The work is extremely varied and can include an investigation into almost any area of complex finance or tax where the instructing party seeks an independent view on an issue. I have been instructed on over 400 cases and no two projects are the same. Typical areas include: Matrimonial (divorce) and family matters: I receive a considerable number of instructions from family lawyers in relation to matrimonial

Typically, forensic accountants originally trained in practice as accountants or auditors. However, the role of a forensic accountant is distinct from that of an auditor and requires additional training and experience. If undertaking expert witness work, appropriate training and accreditation is advisable. The work is always varied, often challenging and certainly not for the faint hearted. q www.yourexpertwitness.co.uk

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“Thou shalt not kill; but needst not strive officiously to keep alive” By LIZ BOSSLEY, CEO of the Consilience Energy Advisory Group Ltd

[

DESPITE THE TITLE, this article is not about the medical profession: instead, it refers to the ubiquitous oil price benchmark, North Sea Brent, which features in an estimated 70% of oil contracts worldwide. This benchmark has been in trouble for the last 20 years because of declining production of the underlying Brent commodity, leaving the price open to manipulation. Increasingly complicated patches have been applied to the Brent price assessment methodology over the years to bolster the amount of oil that qualifies for inclusion in the database used by the Price Reporting Agencies (PRAs) to calculate the invoice price for cargoes as far apart as South America to Africa to Europe and the Far East. Over the years dwindling Brent production has been shored up by the inclusion of Forties, Oseberg, Ekofisk and Troll as deliverable grades in the Brent contract. To accommodate such disparate grades in Brent, the cargo size has been increased from 500,000 bbls to 600,000 bbls and quality adjustment factors and a sulphur price de-escalator has had to be applied. Cost, insurance, and freight (CIF) trades netted back to a free on board (FOB) basis were added subsequently. The latest band aid that is currently envisaged to keep Brent alive is the inclusion of US West Texas Intermediate (WTI) as a deliverable grade in the Brent contract. The extensive modifications that have to be made to the WTI price FOB the US Gulf to render it comparable to oil FOB North Sea call into question the role of Brent in the international price formation process. These modifications include increasing the Brent cargo size further to 700,000 bbl parcel sizes to accommodate transatlantic freight. This has an impact on the North Sea producers who typically accrue or co-load 600,000 bbbl parcels under their lifting agreements with the terminal operators. The intention is to pass risk and title to WTI in international waters, ostensibly to prevent US law and regulation applying when WTI is sold as part of the Brent complex. The naivety of this legal device is illustrated by recalling the ruling of Judge William Connor in the Transnor case back in 1990. This was that Brent was subject to regulation by the US Commodity Futures Trading Commission (CFTC), long before there was any suggestion that American oil should be delivered into the Brent contract.

Who Is in the driving seat?

The problem is that the Brent physical and the quasi-physical forward contracts are largely unregulated. No one has the authority to dictate how companies choose to buy and sell physical contracts. The PRA Platts has stepped into the vacuum by the simple device of stating that it will exclude from its database of transactions used to assess daily Brent prices any deals that are not transacted in accordance with the methodology laid down by Platts. The industry has accepted this role for Platts and the increasingly tortuous modifications devised by Platts to keep Brent alive. The original forward Brent contract that commenced trading in 1981

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emerged from an industry need. The associated Brent CFD and DFL contracts that were added later were similarly devised by the industry in response to a need. Companies found these contracts useful and adopted them because they chose to do so, not because Platts told them they had to in order to be included in the price formation process.

The solution

In my opinion, the best solution to the loss of Brent liquidity is to do nothing and let Brent wither and die. Brent liquidity is already low and is on a declining trend. If it starts to get manipulated or produce unrepresentative prices, companies will stop using it as a matter of choice. If the PRAs stopped publishing a Brent price tomorrow, oil trading would not stop. The industry, like nature, would find a way. Maybe that would be a return to fixed and flat pricing for a while; maybe there would be some quality GPW and freight adjustments to fixed prices based on actual quality and freight data; more likely WTI itself or Murban/Oman benchmarks with adjustments would take over. Letting individual companies choose how to trade has to be better than forcing the industry to change what they are doing to prolong a benchmark whose time came and went a long time ago. If the plan to include WTI is adopted, it remains to be seen if the ISDA Material Change in Formula or Content provisions will be triggered, with inevitable litigation, by the inclusion of US WTI in a North Sea Brent contract. q • Liz Bossley established the Consilience Energy Advisory Group in 1999. Her oil trading career spans more than 45 years in the international crude oil, refined product and freight markets. Her new software product, Revenue Analysis Apportionment and Hedging (RAAH), has just been launched. She is a certified expert witness for oil and freight trading and logistics and has acted in more than 50 disputes. Learn more about Liz at ceag.org/founding-partners and about RAAH at ceag.org/oil-field-hedging-software.

Horse doping: it hasn’t gone away! [ONE OF THE more high-profile areas of

the toxicologist’s work is in sports drug abuse. The worlds of cycling and athletics have hit the headlines with immense impact, spawning films as well as news stories. An area that has a lower profile is doping of animals – specifically horses. While there has been little publicity in recent years, there is still no doubt that the doping of racehorses exists – indeed, the New York Times recently reported on a major doping scandal in Florida, quoting the principal laboratory in New York as saying it is losing the battle against dopers. In the UK the anti-doping effort is the job of the British Horseracing Authority’s Equine Anti-Doping Programme, which ‘aims to safeguard the integrity of British horseracing and the welfare of its equine participants’. According to the BHA: “The inappropriate use of authorised medicines is a threat to the integrity of racing; it can give competitors an unfair advantage and threatens the welfare of horses and therefore is not tolerated. “The BHA therefore ensures that the system of stringent regulation concerning anti-doping and medication control incorporates the essential features of education and prevention.” It is a requirement of the BHA’s Rules of Racing that a trainer is responsible for keeping a clear and accurate record of any treatment administered to each horse in their care for at least 12 months in an Equine Medication Record Book. The record must include authorised medicines administered by a veterinary surgeon or trainer’s representative, medicines for which there are exemptions, and any supplements that are considered prohibited under the BHA Rules of Racing.

“Administration of any substance, except normal food and water, is prohibited on racecourse premises and on the day of the race, unless special dispensation has been granted.” The other side of horse sport, equestrianism, is controlled by British Equestrian. They have equally stringent rules regarding the administration of pharmaceuticals to horses. A further complexity of equestrianism is that many riders are amateurs and young. In those cases additional responsibility is placed on those who loan out horses for competitions. q

www.yourexpertwitness.co.uk

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Welcome to our A to Z guide of the websites of some of the Expert Witness field’s leading players. If you are one of our many online readers simply click on any of the web addresses listed below and you will be automatically directed to that particular website. To get your website listed on this page just give us a call on 0161 710 3880 or email ian@dmmonline.co.uk Chris Dawson MS FRCS LLDip Translations and Interpreting for the Legal Profession since 1997. Specialists in Personal Injury and Clinical Negligence.

Consultant Urologist with over 18 years experience of medico legal report writing and expert witness work in personal injury and clinical negligence cases.

Salam Alaswad LLM PGDip BSc

DentoLegal Ltd – Gary M Simon

www.abc-translations.co.uk

www.chrisdawson.org.uk

• Financial derivatives • Contracts for Difference (CFD) • Forex fraud • Financial crimes • Pre-action assessment • Charts and diagrams for complex cases

DentoLegal specialises in the preparation of evidencebased Breach of Duty & Causation and Condition & Prognosis Dental Reports on the instruction of solicitors.

www.fxandcfd.com/expert-witness

www.dentolegal.com

Dr Paul Baskerville MA DM FRCS

DRC Forensics Limited

Expert witness instructions in cases relating to all aspects of vascular disease. Can act on behalf of claimant, defendant or as Single Joint Expert.

EDRC Forensics Limited offers the complete range of forensic accounting & litigation support: • Fraud • Money laundering • Partnership disputes • Loss of profit • Professional negligence

www.baskervilleclinic.com Dr Thomas C M Carnwath

www.drcforensics.co.uk

Mr Roger Emmott CEng BSc(Hons) MSc/MBA MA FCMI FIC

Consultant Psychiatrist and expert witness in medical negligence and personal injury cases.

Steel and iron ore expert with international arbitration and cross-examination experience in complex disputes • Pricing • Contractual matters • Valuations

www.tomcarnwath.co.uk

www.rogeremmottassociates.com

T: 07974 351704 E: roger@rogeremmottassociates.com

CEERISK Consulting Ltd

Emma Ferriman Ltd

Expert witness services in engineering • infrastructure • construction • oil & gas • petrochemicals • power & energy • mining • insurance • technology • telecomms

Consultant Obstetrician and Fetal Medicine Specialist • Prenatal diagnosis • Obstetric ultrasound • First trimester screening • Multiple pregnancy and high risk obstetrics

www.ceerisk.com

www.emmaferriman.co.uk

Professor Frank Chinegwundoh MBE

FHDI - Kathryn Thorndycraft-Pope

Consultant Urological Surgeon specialising in Personal Injury and Medical Negligence cases on behalf of either claimant or defendant or as a Single Joint Expert.

Examining documents & handwriting • to determine authenticity • to expose forgery • to reveal aspects of origin. Electro Static Detection Apparatus and Mi-Scope used.

www.urologyconsultant.co.uk

www.forensichandwriting.co.uk

D & HB Associates Ltd

Mr Kim Hakin FRCS FRCOphth

Experts in Road Traffic Offences • Accident investigation and reconstruction • Tachograph analysis • Stolen vehicle examination and identification • Statement Taking

Consultant Ophthalmic Surgeon and Expert Witness on ophthalmological matters

www.dandhb.com

www.kimhakin.com

Dr Lars Davidsson MRCPsych MEWI

Laird Assessors

Consultant Psychiatrist and Accredited Mediator Reports within most areas of general adult psychiatry. Specialist in PTSD, anxiety disorders & mood disorders.

The UK’s leading independent automotive expert witness firm supporting claimant, defendant and criminal solicitors. From instruction to court.

www.angloeuropeanclinic.co.uk

www.laird-assessors.com

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Kulvinder Lall Consultant Cardiothoracic Surgeon

Mr Sameer Singh MBBS BSc FRCS Orth

Instructions taken in cases relating to cardiac and thoracic surgery, including aspects relating to surgical care and those following trauma to the structures of the chest.

Consultant Orthopaedic Surgeon • All aspects of trauma – soft tissue and bone injuries • Upper and lower limb disorders and injuries • Whiplash injuries • Performs claimant and defence cases

www.kulvinderlall.com

Clinic locations – London, Milton Keynes and Bedford

www.orthopaedicexpertwitness.net

Mr Chris Makin • Chartered Accountant • Accredited Civil Mediator • Accredited Expert Determiner

www.chrismakin.co.uk Martyn Slyper Consultancy Expert Witness in Assistive Technology • Personal Injury • Clinical Negligence • Industrial Injury E: ms@martynslyperconsultancy.co.uk

www.dandhb.com N-Able Services Ltd

• Chronic pain • Brain injury • Spinal injury • Children & young people • Neurological conditions • Amputations • Complex orthopaedic multi-trauma

www.nableservices.co.uk

Mr Bernard Speculand MDS FDS FFD FRACDS (OMS) Consultant Oral and Maxillofacial Surgeon. Personal injury and clinical negligence cases for claimant, defendant and as Single Joint Expert. Special interest is TMJ Surgery.

Yvette Young (Secretary) T: 0121 605 1884 E: info@medsecadmin.co.uk www.birminghamtmj.co.uk Target Psychology Ltd

• Public & Private Law Proceedings • Pre-Proceedings • Immigration Proceedings • Criminal Proceedings • Court of Protection Proceedings • Personal Injury and Clinical Negligence

www.targetpsychology.co.uk

Myles J O Taylor BA(Oxon) PhD FRCOG

Expert witness specialising in: • General obstetrics & gynaecology • Fetal Medicine • Multiple pregnancy – including twin to twin transfusion syndrome, intrapartum care and general gynaecology.

www.mylestaylor.co.uk

Professor Christopher Raine MBE

Vincent Theobald-Vega

Specialist in paediatric and adult otology • Medical negligence • Personal injury cases involving noise induced hearing loss.

Health and Safety expert • Asbestos management & removal • Construction design and management • Laboratories • Biological & chemical safety and much more.

www.profchrisraine.co.uk

www.safety4hed.co.uk

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MEDICAL NOTES [“WE’RE NOT GOING AWAY” – that was the heartfelt message from the head of the Royal College of Nursing

(RCN) as she revealed the extent of nurses’ dissatisfaction with staffing levels across the NHS. Sadly, an increasing number are going away – to other less-stressful jobs. She was referring, of course, to the fact that the RCN won’t let the matter drop and will continue to press for better levels of staffing. Patients are suffering as a result, there is no doubt, and that can only lead to increased levels of claims against trusts, such as was seen in the cases of two unfortunate patients who died as a result of substandard care in Shropshire. That hapless trust seems to be in the news a lot recently. • It’s not just nurses who are concerned about safety. Doctors have voiced their own fury at their treatment during the pandemic, calling the government’s handling of the crisis a failure in its duty of care. Television was awash at the time with pictures and stories of doctors and other health staff working under intolerable pressure. The BMA, in its latest report on the issue, tells of doctors making their own PPE – one even got his son to make it on his school’s 3D printer! • The BMA report also stressed that doctors from minorities were more likely to develop COVID. That adds to the discrimination those groups suffer in relation to being subjected to fitness-to-practise hearings. The profession’s regulator the GMC is, to its credit, committed to tackling the problem. Indeed, the council received a relatively clean bill of health from its own regulator recently. Quis custodiet ipsos custodiens? Answer: the Professional Standards Authority. • One of the immediately palpable effects of the COVID pandemic was the drying up of surgical procedures and subsequent backlog of cases upon resumption. In no other specialty has that been more marked than in orthopaedics. Fortunately, the British Orthopaedic Association is leading the field in training and education for its members in the legal aspects of their job. That could prove useful if the lengthening waiting list spills over into tragedy. • Much orthopaedic practice concerns joint replacement and unfortunately not all joint replacements lead to a pain-free life. It appears that the younger we are when we have the operation the higher our expectation of the results: and the greater our feeling of disappointment when all doesn’t go to plan and we experience continued pain. • And the treatment of pain with painkillers is stirring up some controversy at the moment. A recent consultation from NICE on the use of painkillers to treat osteoarthritis elicited an article in The Times implying that patients have been advised to stop taking painkillers. The BOA pointed out that the consultation referred only to early stages of arthritis. Both BOA and researchers at St George’s University of London maintain that there is little alternative until surgery is available. The conventional wisdom of treating chronic pain with anti-inflammatories is being challenged, however. It appears that inflammation is a necessary part of the healing process and should not be interfered with. • Another traditional practice that can cause problems is the use of compression stockings to prevent DVT during and after surgery. A leading expert explains that, while efficacious in most cases, there are no-go areas. DVT is one of a series of potential problems that can occur post-operatively and in intensive care. Some may lead to claims. From pressure sores to airway blockages to MRSA infection, the intensive care consultant’s life is far from straightforward. Again, a notable expert leads us through the pitfalls. Fortunately, the beleaguered army of dedicated medical staff somehow manage to steer us back to health. q

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Trust in court again following patient deaths [

FOLLOWING ON FROM the Ockenden Review into maternity provision and an ongoing police inquiry into the deaths of babies at Shrewsbury and Telford Hospitals NHS Trust, the trust has found itself back in the dock – this time for failings that led to the deaths of two patients. The trust was ordered to pay a total of £1,375,712 at Telford Magistrates’ Court on 18 May after pleading guilty to failing to provide safe care and treatment to the two patients, causing them avoidable harm, as well as exposing other patients to a significant risk of avoidable harm. Mohammed Ismael Zaman – known as Bolly – attended the Royal Shrewsbury Hospital to receive dialysis on 18 October 2019. When a patient receives dialysis, their connection lines must always be visible; however, that did not happen in his case. The trust also failed to ensure that their staff were adequately trained to follow best practice guidelines regarding the connection lines being secured to his bed, which may have resulted in them becoming disconnected. He was found by staff bleeding heavily from a disconnected line. Resuscitation was attempted but was unsuccessful. Sadly Bolly died. Max Dingle was admitted to the Royal Shrewsbury Hospital on 27 April 2020 due to shortness of breath and a high temperature. On 28 April 2020 he was assessed as requiring a specialist bariatric bed. On 3 May 2020, Max was found trapped in the bariatric bed and died shortly afterwards. The trust failed to train staff in the setting up of bariatric beds and that led to the entrapment of Max.

Shrewsbury and Telford Hospital NHS Trust did not take all reasonable steps to ensure that safe care and treatment was provided, resulting in the most serious avoidable harm possible to two patients and the exposure of harm to other patients at the Royal Shrewsbury Hospital. Each case was considered as an individual offence, for which the trust was fined £800,000 for Bolly's case and £533,334 for Max's case – a total fine of £1,333,334. The court also ordered the trust to pay £42,378 costs to the Care Quality Commission (CQC), which brought the prosecution. Fiona Allinson, director of operations at

CQC’s Midlands network, said: “Both of these deaths are a tragedy. My thoughts are with the families of Bolly and Max, and others grieving for their loss. “People using health and social care services have the right to safe care and treatment, so it’s unacceptable that patient safety was not well managed by Shrewsbury and Telford Hospital NHS Trust. “Both patients were severely let down due to the hospital not undertaking thorough and appropriate checks to ensure their needs were being met. The avoidable death of any patient is one too many and something that everyone working in the health and care system must do all they can to prevent.” q

GMC’s performance praised by regulator’s regulator [A PERFORMANCE REVIEW by the Professional Standards

Authority (PSA), covering the period for 2020/21, has confirmed the GMC met all 18 standards of good practice, including fairness, transparency, efficiency, and public and doctor safety. In particular, the report recognised the GMC’s commitment to eliminate disproportionate fitness to practise referrals from employers about ethnic minority doctors by 2026 and to eliminate disproportionate outcomes in medical education and training by 2031. It also recognised the GMC’s work to create two new routes to registration as part of its pandemic response and work to conclude fitness to practise cases following pandemic delays. GMC chief executive Charlie Massey said: “Being recognised for upholding our high standards of regulation, when medical professionals continue to be under immense pressure, is crucial to promoting patient safety and supporting those hard-working professionals. “We are committed to eliminating the discrimination experienced by some ethnic minority doctors, which is why we have set ourselves some

ambitious targets for tackling disproportionality in both medical education and fitness to practise referrals. We cannot solve these problems alone, though, and our success will very much depend on our ability to work with and influence the behaviour of our external stakeholders. I am certain we all share a common ground on these issues, and it is my hope that by working together we can eradicate these issues by our target dates. “Supporting the recovery in the NHS as we emerge from this pandemic remains a priority for us and we will continue to work with other healthcare bodies to identify opportunities which will help meet the demands of modern patient care.” The PSA for Health and Social Care oversees statutory bodies like the GMC who regulate health and social care professionals in the UK. It assesses performance, conducts audits, scrutinises decisions and reports to Parliament. It also sets standards for organisations holding voluntary registers for health and social care occupations and accredits those that meet them. q www.yourexpertwitness.co.uk

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Station legal advisers at GP surgeries, think tank urges [ADVISERS STATIONED at GP

surgeries, council offices, libraries and other convenient locations can help more people get more ‘timely’ access to civil justice, according to a think tank report published by the Social Market Foundation (SMF). Legal support for civil justice – issues such as debt, family breakdown, or disputes over housing or employment – can reach those in need better if they are located in places people go to when in distress – like GP surgeries, the SMF said. It had found that changes in government legal aid rules have drastically limited support for the poorest and those who remain digitally excluded, even though civil justice issues remain extremely common. Over two-thirds of people have had a civil justice issue in the past four years, and about a fifth have faced more than one such issue. However, over the past decade, half a million fewer cases are taken on by legal aid. The briefing came as the Health and Social Care White Paper emphasised the need for joining up services to address people's health needs. The consequences of civil justice issues include stress (53%), financial loss (33%), and even problems

with drugs or alcohol – issues that place a burden on the NHS. Medical-legal partnerships have been in place in the USA for decades; however, attempts to co-ordinate legal assistance in England and Wales under the last Labour government were quickly scrapped – despite inspiring similar initiatives in Australia. For example, the states of New South Wales and Queensland both bring together stakeholders such as legal aid, courts and family and domestic violence services to identify ways that they can support one another. One expert participant at the briefing said that the UK has gone from leading on civil justice, to becoming ‘rather peripheral’. In addition to co-locating and coordinating services, SMF recommendations include reversing cuts to civil legal aid, which some estimates suggest would save the Government money across public services for future issues, and collecting better and more timely data through a biannual Civil Justice Survey for England and Wales. The last government survey on the topic was carried out in 2014/15. Dr Aveek Bhattacharya, the SMF’s chief economist, said: “Civil justice is less

attention-grabbing than criminal justice, but that shouldn't lead us to underestimate its importance. Most of us will experience some form of civil justice issue in the next few years, be it debt difficulties, a dispute with neighbours, a problem with housing or being mis-sold goods or a service. “These issues have a tendency to escalate, so we shouldn't expect people just to muddle along, at a cost to their health, wellbeing and financial security. Instead, it is critical to provide accessible and timely interventions, available to people where they are. That requires creative and joinedup thinking to ensure that the relevant services work together and put the people they serve first.” The briefing was sponsored by AIG, whose head of international public policy Rhodri Williams commented: “We are proud to have supported the work of the Social Market Foundation in highlighting inequities and disadvantage in the criminal justice system. By focusing attention on a simple and practical way to help people obtain timely access to civil justice, this important report is a timely and constructive contribution to evolving policy thinking.” q

Nurses brand staffing levels ‘unsafe’ [IN RESPONSE to a survey carried out by the Royal College

of Nursing (RCN), 83% of members said there weren’t enough nursing staff to meet all patient needs safely and effectively on their last shift. Just a quarter of shifts had the planned number of registered nurses. Less than one in five said they had enough time to provide the level of care they’d like. RCN general secretary and chief executive Pat Cullen said: “These results speak for themselves. The risk to patients, to services and to health and care staff is simply unacceptable. The complacency from governments across the UK is unacceptable. “Our members are nursing under unsustainable pressure, and governments are risking lives by failing to take urgent action. Together, we’re determined to use our position as the leading voice of nursing to be the greatest champion of high-quality patient care.” The RCN is calling on governments across the UK to take accountability for nursing workforce planning and supply in law, and immediately publish independently verifiable assessments of population health needs. These should directly inform what’s invested into the nursing workforce.

Pat Cullen added: “We're tired, fed up, demoralised, and some of us are leaving the profession because we've lost hope. Do something about it – we're not going away.” Worryingly, one in five (21%) said they felt unable to raise concerns. The RCN’s Nursing Workforce Standards say nursing staff should be encouraged to report incidents where safety is compromised, benefitting from a ‘psychologically safe’ environment that enables learning rather than blame. q www.yourexpertwitness.co.uk

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Govt handling of pandemic amounted to failure of duty of care, doctors claim [A MAJOR REVIEW into the UK Government’s handling of the

pandemic and its impact on the NHS, the health of the population, and doctors, has been undertaken by the BMA. The first two reports conclude that the UK Government ‘failed in its duty of care to protect doctors and the wider healthcare workforce from avoidable harm and suffering in its management of the COVID-19 pandemic’. The reports, part of a series of five, are the most comprehensive accounts of the lived experiences of doctors throughout the pandemic. They have been collated from thousands of doctors across the UK, including those who were on the frontline during COVID-19. They also draw upon real-time surveys over the past two years, as well as formal testimonies, data and evidence sessions from stakeholders. Page after page details the devastating impact of the pandemic on medical professionals as individuals, and on the NHS, showing mistake after mistake: errors of judgement and policy made by the UK Government which amount to a failure of a duty of care to the workforce. In what is believed to be the first documented account of its kind, doctors from across the UK have spoken out about their own experiences during the pandemic, recounting their fears and anxieties as well as laying bare the shortages of PPE, a lack of timely and adequate risk assessments, and the huge impact on their mental and physical health. The reports, which will also form part of the BMA’s submission to the UK COVID-19 Public Inquiry, make a series of recommendations about lessons which must be learned as well as presenting evidence of where things went wrong. Dr Chaand Nagpaul, BMA chair of council, commented: “A moral duty of government is to protect its own healthcare workers from harm in the course of duty, as they serve and protect the nation’s health. Yet in reality, doctors were desperately let down by the UK Government’s failure to adequately prepare for the pandemic, and their subsequent flawed decision-making, with tragic consequences. “Many doctors were left unprotected due to critical shortages of PPE as coronavirus hit our shores, resulting in healthcare professionals becoming infected at a higher rate than the rest of the population. Hundreds of healthcare workers lost their lives after contracting COVID-19: 95% of doctors who died in April 2020 were from an ethnic minority – a figure which demands that the UK Government addresses the deep race inequalities afflicting our NHS workforce. “With no respite, doctors worked on the frontline exposed to the virus – while the majority of the public stayed at home during the lockdowns. They saw levels of illness and death they were never trained for. With the dystopian reality of no hospital visitors, doctors had to hold phones in front of dying patients so they could say goodbye to loved ones.

“Doctors’ health suffered as a result, with significant numbers still experiencing mental and physical exhaustion as they face the gargantuan task of the greatest backlog the NHS has ever faced. Sadly, many continue to experience the debilitating symptoms of long COVID, preventing them from returning to work and affecting their lives daily. “These reports add clear evidence of why the UK Government’s response to COVID-19 has been described as ‘one of the most important public health failures the United Kingdom has ever experienced’. The evidence presented in our reports also demonstrates, unequivocally, that the UK Government failed in its duty of care to the medical profession. “The lessons from this review need to be learned and acted on now – given that new variants, new viruses or future surges of demand can happen swiftly. We must never see a repeat of doctors and healthcare workers left exposed and vulnerable, and we can never afford to see another disaster on this scale ever again.” The report makes a number of key recommendations to prevent the situation arising again, including carrying out pandemic preparedness exercises and acting on the results to ensure adequate stockpiling of PPE, funding public health services to be able to rapidly scale up testing for future variants or pandemics and making support available to the healthcare workforce to ensure staff can recover from the pressure of delivering care during a pandemic. Anecdotal evidence uncovered by the research includes doctors having to make their own PPE – or in one case having it made by a doctor’s son using his school’s 3D printer – and the fact that ethnic minority and disabled staff were at a higher risk of exposure. q

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BOA counters implication that arthritis sufferers should eschew painkillers [THE British Orthopaedic Association has responded to an article

in The Times on NICE guidelines for osteoarthritis patients. The front page article on 29 April ran under the headline Stop taking painkillers for arthritis, patients told and discussed new National Institute for Health and Care Excellence (NICE) guidelines for osteoarthritis patients that the government is consulting on. The BOA’s letter to the editor in response to the article, signed by BOA president Professor John Skinner, pointed out that the draft proposals from NICE are appropriate for osteoarthritis patients with early disease to manage their symptoms. Professor Skinner continued: “However, we must not forget the 700,000 patients on orthopaedic waiting lists, with at least 200,000 waiting for operations, as a large number of these patients have arthritis. These patients have tried and failed to have their symptoms

controlled by weight loss, exercise, anti-inflammatory tablets and creams, and now need surgery. It is important these patients continue to be active and lose weight if possible, but they should not stop taking painkillers without first discussing this with their doctors. These patients really need surgery and every effort must be made to prioritise operations.” Professor Skinner also pointed out that patients with severe endstage arthritis needing surgery were not included in the scope of the NICE guidance. “Surgery is highly effective for patients with advanced osteoarthritis,” the BOA letter said, “and 98% get important and often life-changing pain relief. While waiting for surgery, these patients are in a lot of pain and painkillers remain an important part of making life bearable.” q

Orthopaedic body takes the Painkillers vital for arthritis lead in medicolegal education patients awaiting replacements [

THE British Orthopaedic Association takes a proactive role in protecting its members from litigation with a course on Law for Orthopaedic Surgeons. According to the BOA: “It is specifically designed to highlight potential pitfalls in practice from the medico-legal perspective and to help steer surgeons away from potential jeopardy.” It is aimed at consultants, SAS doctors and orthopaedic trainees who wish to gain knowledge of the elements of law which underpin various aspects of contemporary surgical practice. It includes: • Practical advice on how to approach giving evidence in legal • proceedings such as coroner's courts • Advice on practical measures to avoid jeopardy with • employers, the courts and the regulator • A full delivery day of case-based discussion talks with Q&A • including a mock coroner's inquest • Pre-recorded material to be watched in advance The faculty comprises experienced consultants in surgical specialties, all with extensive knowledge of law relating to surgery, as well as practising barristers, coroners, assistant coroners and a representative from the Medical Protection Society. The topics of surgical relevance covered include consent, gross negligence manslaughter, the Medical Practitioners Tribunal Service and the GMC, blood transfusion refusal, introduction to coronial law and coroner’s court, confidentiality and data protection, clinical negligence, and the pitfalls of social media. q

[

THE IMPORTANCE OF PAINKILLERS in helping people with arthritis cope while awaiting transplants was emphasised by research carried out at St George’s University of London by Professor Nidhi Sofat. She pointed out that, right now, the best option for patients is to rely on pain killers until their condition gets so bad that they need a joint replacement. There are currently no treatments that halt the progression of osteoarthritis, partly because the underlying biological drivers of the disease are not well understood. “Cartilage gets damaged as one of the early steps in osteoarthritis, followed by changes in the underlying bone,” said Professor Sofat (pictured above with a patient). “Until recently, these changes in the bone, known as bone marrow lesions, were just mysterious shadows on MRI scans. Doctors knew they caused patients significant pain, but they didn’t really know what they were or how to treat them.” In a study Professor Sofat and her team studied samples of bone marrow lesions from the knee joints of people with osteoarthritis. “We saw more blood vessels and more nerves in these lesions, which might explain why the patients are experiencing so much pain,” said Professor Sofat. The team also found that genes involved in forming new nerves and blood vessels were more active in the bone marrow lesions, compared with healthy tissue. So, what’s next? “We’re now testing whether the products of these genes could be useful as biomarkers to diagnose osteoarthritis,” she said. “We hope they will give us some clues as to which pathways are affected in this condition and help us understand what to target for treatments in the future.” q

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Why is my total knee replacement still painful? By Mr Nikhil Shah, consultant trauma and orthopaedic surgeon at Wrightington Hospital, Lancashire

[A TOTAL KNEE REPLACEMENT is generally a successful

operation to improve the pain and function associated with end stage arthritis of the knee joint. It involves resection or excision of the arthritic surface of the tibia and femur, and in many cases the patella (the kneecap), and replacing that with artificial prosthetic joint components made of metal – commonly cobalt-chrome or titanium – and plastic. The National Joint Registry of the United Kingdom and various other registries have shown excellent longevity and prosthetic survival at follow-up periods of 20-25 years. However, despite the good long-term success of total knee replacements, many patients who undergo the operation remain subjectively dissatisfied with their end result. The orthopaedic literature would suggest that the percentage of patients who are unhappy with their total knee replacement can vary from 20 to 25%. That can be noticed even with otherwise technically well-performed surgical procedures. The percentage of dissatisfied patients is found to be much greater (30-40%) in certain high-risk patient groups. In other words, the objective parameters by which a knee can be assessed by the surgeon remain satisfactory, but the patient is unhappy with the result. That outcome can be measured by various subjective assessments that are referred to as patient reported outcome measures (PROMs). Over the past few years there has been an increased emphasis on recording the PROMS, to help determine whether a patient is satisfied or not with the total knee replacement that they undergo. Such outcome measures also show the discrepancy between what patients perceive to be a good result from surgery, as opposed to what surgeons define as a good result. The usual symptoms that patients complain of when they are unhappy with their total knee replacements are wide ranging, but include pain or discomfort, stiffness or reduced movement, instability or a feeling of wobbliness, pain or unpleasant sensations on the side of the surgical scar, or sounds and noises (clicking, clunking etc) coming from the knee joint among others. Often that is associated with functional problems such as difficulty in walking longer distances, an inability to kneel, difficulty in climbing stairs etc. A common reason for dissatisfaction is the failure to meet the patient’s expectations from the surgery. There are various causes why someone may be disappointed with the result of their knee replacement. One of the most important aspects of performing this type of surgery is patient selection. A good indication for a total knee replacement is a patient in an older or elderly age group who has severe end stage knee arthritis, associated with symptoms of significant pain which interfere with the quality of life. It is important that the symptoms reported by the patient correlate with the clinical examination findings noted by the surgeon and that in turn correlates with the x-ray findings of severe arthritis. It is well recognised that total knee replacements offered in arthritis of lesser severity in patients who have otherwise well-preserved function and who do not have significant pain levels are associated with subjectively inferior outcomes. One must exercise caution in offering surgery where the symptoms are atypical or do not correlate with the signs and x-rays. It is important to ensure that pain is actually emanating from the knee joint itself. Pain that is referred from the spine or the hip joint to the knee, or pain due to vascular or neurogenic claudication, can make it difficult

to determine the exact source of pain. That pitfall is not uncommonly seen in some patients, where it is retrospectively identified that the pain was coming from a different area. Certain other patient groups are also found to be at higher risk of developing subjectively poorer outcomes following total knee replacements. That group includes patients who are of a younger age group. Often, the expectations of younger patients from their knee replacements are much greater than elderly or low demand patients, although that is increasingly changing with very active older age group patients also expecting their knee replacement to give them high levels of activity. If those expectations cannot be met, then that leads to subjective dissatisfaction. Other risk factors include patients who have had several previous surgical procedures on their knee joint before undergoing a total knee replacement. Recent studies have also identified a raised body mass index into bracket obesity to be a risk factor for subjective dissatisfaction following total knee replacements. Similarly, neuropathic pain may rarely occur due to a condition called complex regional pain syndrome. That condition is quite difficult to treat. In every case it is important to identify certain treatable or surgically correctable causes of a painful knee replacement before labelling the knee as an unhappy one. Those causes include prosthetic joint infection or loosening. Infection after total knee replacement can be quite difficult to diagnose in many patients, especially when it is low grade. A thorough and meticulous approach towards taking a comprehensive history, performing a clinical examination and obtaining appropriate radiological and serological investigations is required to diagnose infection. Loosening of the total knee replacement, although uncommon, can also be quite difficult to diagnose and the x-ray findings may be quite subtle. Arthrofibrosis is a constitutionally influenced condition characterised by formation of internal scar tissue inside the knee, which leads to stiffness. That often leads to the patient being quite disappointed. Managing expectations and educating the patient are key factors in satisfaction after total knee replacements. It is very important to counsel the patient carefully about the benefits and risks of the procedure and the possible outcomes. A detailed and frank discussion of those aspects at the time of the first consultation and in subsequent consultations is extremely important in educating the patients about realistic outcomes. That dialogue is an important part of the overall consent process. Occasionally patients may state after surgery that they did not fully understand the implications of undergoing a total knee replacement. That can sometimes lead to a breakdown of the doctor/patient relationship. Not only is it important to provide a detailed explanation of the potential risks and complications, but also to ensure that the patient has understood the consequences of those complications should they materialise. It is also important that pain after total knee replacement is a recognised non-negligent complication: just because a total knee replacement has not turned out quite the way the patient wanted it to, that is not synonymous with breach of duty. q www.yourexpertwitness.co.uk

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Chronic pain cases need an appropriate expert [WHEN CHRONIC PAIN is a possible

consequence of a specific trauma event, it is possible that the original trauma was the result of an event that can give rise to a claim – or mismanagement of the original trauma may have led to the chronic pain. Either way, cases involving chronic pain can be among the most complex cases to deal with. Chronic pain is described as ‘a persistent pain, which continues after healing or is the result of on-going damage’. According to the Faculty of Pain Medicine, eight million people have chronic pain of at least moderate intensity. A further six million have some chronic pain of some form, and 6-8% of the population have severe pain that prevents some or most activities. The prevalence of chronic pain doubles over the age of 65, but chronic pain can be experienced by anyone. Associate solicitor Andrew Sloan of Minster Law specialises in cases involving chronic pain and has published some insights into the process involved in running a case for chronic pain. He says: “If a client appears to be developing an underlying pain condition, then the file handler cannot take the initial medical report and what has been said at face value. One cannot rely on the report to consider if a pain condition is evolving and it is the file handler’s responsibility to identify any red flags which may give rise to a pain case. The sooner a solicitor can see a

potential pain condition evolving the better.” Importantly, he flags up the importance of appointing an expert with the specific expertise in dealing with chronic pain. Typically, a whiplash case, for example, will involve the instruction of an orthopaedic expert. However, he explains: “Whiplash is a muscular injury, and orthopaedic experts are bone specialists. The difficulty with medical reporting proceeding this way is this commonly results in symptoms being linked to an acceleration of a pre-existing degenerative issue from an asymptomatic to a symptomatic condition. “What if the pain they are suffering is beyond what could be expected in a normal degenerative condition?” He cites the case of Beard v Skanska, where an injury at work caused soft tissue injury to the spine. The orthopaedic experts involved determined the accident had accelerated the symptoms of a pre-existing degenerative spine by a period of 12-months. However, a referral was made to a pain expert who formed the view the claimant had in fact gone on to develop a chronic pain syndrome. Andrew Sloan concludes: “Therefore, it is of vital importance when running a chronic pain case that thought and consideration be given to the instruction of the appropriate expert.” q

NSAIDS and steroids may make chronic pain worse, research finds [USING ANTI-INFLAMMATORY DRUGS and steroids to relieve pain

could increase the chances of developing chronic pain, according to researchers from McGill University in Montreal and colleagues in Italy. Their research puts into question conventional practices used to alleviate pain. Normal recovery from a painful injury involves inflammation, and blocking that inflammation with drugs could lead to harder-to-treat pain, the researchers found. “For many decades it’s been standard medical practice to treat pain with anti-inflammatory drugs. But we found that this short-term fix could lead to longer-term problems,” said Professor Jeffrey Mogil, the E P Taylor Chair in Pain Studies at McGill University. In the study, published in the journal Science Translational Medicine, the researchers examined the mechanisms of pain in both humans and mice. They found that neutrophils – a type of white blood cell that helps the body fight infection – plays a key role in resolving pain. “In analysing the genes of people suffering from lower back pain, we observed active changes in genes over time in people whose pain went away. Changes in the blood cells and their activity seemed to be the most important factor, especially in cells called neutrophils,” explained Luda Diatchenko, a Professor in the Faculty of Medicine, Faculty of Dentistry, and Canada Excellence Research Chair in Human Pain Genetics. Professor Mogil continued: “Neutrophils dominate the early stages of inflammation and set the stage for repair of tissue damage. Inflammation occurs for a reason, and it looks like it’s dangerous to interfere with it.” Both are members of the Alan Edwards Centre for Research on Pain. Experimentally blocking neutrophils in mice prolonged the pain up to 10 times the normal duration. Treating the pain with anti-inflammatory

drugs and steroids like dexamethasone and diclofenac also produced the same result, although they were effective against pain early on. The findings are supported by a separate analysis of 500,000 people in the UK that showed that those taking anti-inflammatory drugs to treat their pain were more likely to have pain two to 10 years later, an effect not seen in people taking acetaminophen or anti-depressants. “We discovered that pain resolution is actually an active biological process,” Professor Diatchenko added. “These findings should be followed up by clinical trials directly comparing anti-inflammatory drugs to other pain killers that relieve aches and pains but don’t disrupt inflammation.” q

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Surgeons call for compulsory insurance as cosmetic complications soar [

THE British Association of Aesthetic Plastic Surgeons (BAAPS) is calling for action to be taken to address the issues associated with botched cosmetic surgery carried out abroad. They are calling for travel insurance to be made compulsory in order to protect patients and reduce the burden on the NHS, as complications from cosmetic surgery abroad rise by 44%. An audit published by the association revealed that complications from patients having surgery abroad rose during the COVID pandemic as people sought out cheaper deals outside the UK. The audit showed that 324 patients required further surgery after returning to the UK in the past four years. The annual number rose by a staggering 44% in 2021 compared to the previous year – a period when people were being advised against elective surgery and unnecessary travel. In 2021, 75 women and seven men were treated for complications, which included some with life-threatening problems such as the need for emergency surgical removal of dead skin tissue – known as debridement – and admission to intensive care for life support following systemic infection. Those complications, despite treatment, would still leave permanent life-changing physical deformities along with the psychological effects of the injuries. A survey of BAAPS council members showed that all of the complications came from Turkey and that abdominoplasty accounted for 75% of them, followed by breast surgery procedures. Travelling for cosmetic surgery is not a new phenomenon. A BAAPS survey in 2009 highlighted the extent to which the NHS manages the complications of cosmetic tourism. However, patients travelling abroad during the COVID-19 pandemic for aesthetic surgery is especially alarming. The lack of individual responsibility is being highlighted by BAAPS: many of the patients suffering complications are treated on an already strained NHS. One study presented to BAAPS in 2017 suggested the average cost to the NHS per patient was a staggering £13,500, a figure which is now estimated to be closer to £15,000. Many also need private treatment, wiping out any saving they may have made by going abroad in the first place. Mary O’Brien, president of BAAPS, commented: “When patients go abroad for cosmetic surgery, they usually have no knowledge of the competence and experience of the surgeon; and there is very little prospect of follow-up care and advice. Best practice is compromised by the fact that patients are only meeting their surgeon immediately before a procedure – at which point generally they are committed to and have paid for the surgery. Patients then return to the UK without adequate medical records, if any. Follow-up is difficult. Complications do occur and are usually left to the British system to pick up. The surgeons involved in these schemes do not have a work permit nor are registered in the UK, and it is unlikely there will be any possibility of seeking revisional surgery.” Consultant plastic surgeon and BAAPS council member Caroline Payne explained the factors that led to the increases in cases: “BAAPS members were very cautious in recommending surgery during the pandemic. Additionally, many private hospitals were assisting the NHS with their facilities to help with emergency and urgent medical need, as were many of the BAAPS surgeons themselves. Unfortunately, COVID does not seem to have deterred

patients from seeking low-cost options abroad and some UK clinics are paid to refer patients to Turkey. “Cheaper can sometimes prove to be more be expensive – if patients need things put right or are worried and need a follow up consultation they may have to fly back. That additional cost can wipe out the original saving. Alternatively, they may have to pay a surgeon in the UK to correct the procedure or the NHS may end up shouldering the responsibility.” As restrictions ease, an increasing burden of patients with complications from cosmetic tourism needs to be avoided at all costs. That is why BAAPS is calling for cosmetic surgery travel insurance to be made compulsory to help tackle the situation. Mary O’Brien explained: “Patients travel abroad mainly for cost saving. As such they gloss over expertise, and the higher complication rates associated with lesser expertise puts the patients and NHS at a burden on their return. This could be addressed with compulsory travel insurance. Furthermore, increasing the overall cost for patients travelling abroad for cosmetic surgery would perhaps make them think twice about a decision that could have serious, if not lethal, consequences.” q

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Common causes of medical negligence in intensive care By Dr Martin Stotz, Consultant in Adult Intensive Care and Anaesthesia

[PATIENTS TREATED in an intensive care unit (ICU) often have

complicated and life-threatening conditions, which may require treatments that are invasive and sometimes potentially dangerous. Not surprisingly, adverse events are frequent and may lead to a claim for medical negligence. As well as an increase in mortality, patients may be left with long-standing health issues, including muscle weakness, cognitive disorders and post-traumatic stress disorder. Thus, litigation following incidents arising in the ICU is relatively common and settlement costs are likely to be high, reflecting the often-poor outcome for the patient. Between 1995 and 2005, the number of claims against the NHS following treatment in an intensive care unit rose steadily, although more recently there has been a decrease. However, many claims are not made until several years after the alleged incident, so the apparent reduction may simply reflect claims that are yet to be made. Analysis of the claims issued against the NHS show that the commonest categories concern positioning and skin/ care, infections and respiratory/ airway conditions. Claims in the first category predominately relate to pressure sores and are also responsible for the highest proportion of severe non-fatal outcomes. While the issue of pressure sores is often overlooked, their occurrence is very common. They are caused by many factors, but the number of patients who are elderly, frail or obese, or who present with other comorbidities, is increasing and the problem of pressure sores is therefore unlikely to diminish. To counter this, guidelines and national recommendations have been drawn up, although many of the proposed measures should already form part of the standard protocol for ICU nursing care. Although not the commonest overall reason for a claim, incidents involving respiratory/airway issues account for around one third of claims relating to the death of a patient. Airway supervision is lower in an ICU than an operating theatre. Furthermore, patients in ICU are often dependent on ventilators and oxygen supplies and also require frequent turning. These factors mean that ICU patients are at an increased risk of airway compromise, the consequences of which are likely to be serious. Steps to minimise the risk include identifying patients with breathing difficulties through the provision of continuous capnography, and relevant staff training and equipment to deal with an airway emergency. Perhaps unsurprisingly, missed and delayed diagnoses are also a common reason for subsequent patient mortality. Overall, this category, when combined with incidents involving delayed and inadequate treatment or a failure to monitor or identify any deterioration in a patient’s condition, makes up a large proportion of all claims. Furthermore, successful claims are likely to have high rates of compensation, reflecting the serious impact these errors can have on the treatment outcome. Lapses of judgement underpin most of these errors, rather than an inherent lack of knowledge or rulebased mistakes.

Failure to carry out the intended treatment includes medication errors, the majority of which occur during administration of the drugs. These may range from giving the wrong dose to missing a dose entirely. Mistakes during prescribing are less common. One further issue is that ICU patients, who are by definition seriously ill, are at an increased risk of drug-drug interactions, due to the multiple interventions needed to treat them. The risk is heightened further by the high proportion of elderly or very young patients typically found in an ICU, as these age groups appear to be particularly sensitive to medication interactions. Around a quarter of all claims relating to hospital-acquired infections involve MRSA. Although most of these are not serious, some can be life threatening, particularly if the infection affects surgical wounds, the bloodstream or the lungs. Complications of MRSA infection include endocarditis, gangrene, necrotising fasciitis and infections of the bones and joints. If left untreated, MRSA infection can also lead to sepsis, but infection control is complicated by the fact that many types of antibiotics are ineffective. This may lengthen the patient’s stay in hospital considerably. Prevention measures include swabbing of all patients on admission to identify those who are already carrying MRSA and are therefore at higher risk and adherence to strict cleanliness and hygiene protocols to reduce the possibility of crossinfection between patients. Regardless of the actual condition, one factor underlying many claims is a lack of communication. This is particularly important in the ICU, where care is often team-based, due to the complex nature of the conditions treated. Poor communication has been identified as a contributory factor in many adverse events. Open and effective communication between team members allows each member to contribute fully and prevents conflicting messages about progress and outcome being reported to the patient. Part of this communication should be the keeping of comprehensive notes for each patient. By its very nature, treatment in an ICU is high risk and claims for medical negligence are relatively common. Furthermore, outcomes for ICU patients are often worse than for other areas of medicine, so settlement costs are often high. However, good care and communication in the ICU, along with strict adherence to protocols, can actually reduce the likelihood of litigation occurring in the first place or succeeding should a claim arise. q • Dr Stotz is a Consultant in Adult Intensive Care and Anaesthesia at St Mary’s Hospital in London, where he leads a multi-disciplinary team. St Mary’s Hospital, as part of Imperial College NHS Trust, is one of four major trauma centres in London and a tertiary vascular referral centre. Dr Stotz can provide expert opinion on a range of cases relating to the anaesthetic care and management of patients pre, during and post operatively and the clinical management of critically ill patients for both claimant and defendant. He was heavily involved in managing COVID patients during the pandemic. www.yourexpertwitness.co.uk

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Research shows global impact of COVID on heart health [

A MAJOR international study, led by researchers funded by the British Heart Foundation (BHF), has revealed the ‘global collateral damage’ caused by the disruption to cardiac services by the COVID-19 pandemic. The research warns that across the world problems with heart health will ‘continue to accrue unless mitigation strategies are speedily implemented’. Early in the pandemic, data from hospitals across England showed a significant drop in the number of people attending emergency departments with a suspected heart attack. Since then, research has investigated the impact of COVID-19 on cardiovascular services; however, that has provided an ‘incomplete overview’, according to the latest paper from a team led by researchers at the University of Leeds. They have provided the first global assessment of the way cardiovascular services coped during the pandemic. Their study describes a ‘substantial global decline’ in hospital admissions of people suffering from cardiovascular disease. As a result, the number of people dying at home or in the community from heart conditions increased. In cases where people did get medical help there was, on average, more than an hour’s delay in reaching hospital or having contact with paramedics. The chances of people surviving a major heart attack depends on timely and appropriate treatment.

Struggling to give gold standard treatment

The researchers analysed data from 189 separate research papers looking at the impact of COVID-19 on cardiovascular services from 48 countries on six continents and covering a two-year period from December 2019. Although the problems they identified were seen across the world, they were exacerbated in low to middle-income countries. Hospitals and clinics in those locations struggled to give the gold standard treatment, in some cases using drugs instead of interventional procedures such as fitting a stent into a blocked artery.

The result has been an increased death rate among cardiovascular patients in hospitals in low to middle-income countries, as well as more people dying at home from cardiovascular disease in the UK. The researchers warn that the disruption to cardiovascular services will leave a legacy that will require prompt action from political and healthcare leaders. Dr Ramesh Nadarajah, BHF clinical research fellow at the University of Leeds, led the research. He said: “Our analysis shows that, during the pandemic, people across the world did not receive the cardiac care they should have received. That will have ramifications. The longer people wait for treatment for a heart attack, the greater the damage to their heart muscle, causing complications that can be fatal or cause chronic ill health. Health systems need to be reinforced so they can support and treat people whose heart conditions will inevitably be worse because of the pandemic. The paper provides evidence of that.”

Urgent plan needed for cardiac services

The latest analysis from BHF shows that that, at the end of March, 309,796 people were on a waiting list for cardiac treatment in England – a figure that had been growing over the previous 21 months. Dr Sonya Babu-Narayan, BHF’s associate medical director and consultant cardiologist, said: “Cardiovascular disease remains the world’s biggest killer and tackling it is now more urgent than ever. Yet again this study provides evidence that delays to cardiovascular care are costing lives and causing avoidable heart damage. This will only add further pressure to an already overwhelmed health system. “In England, we urgently need a comprehensive and specific cardiovascular plan to address the burden of cardiovascular care including the backlog, and provide immediate and long-term solutions to our cardiovascular workforce shortage. Without this we will continue to see heart attacks, lasting heart damage, or even premature deaths that could have been avoided.” q

Stress leads to heart disease for legal high-flyer [RACHEL BOOTHROYD was working as a successful lawyer in

the city when she felt something was wrong with her body. “I thought old age was getting to me,” she said, “so I went to the gym to try and get fitter, even though I had aching pain in my chest and my arms. I only went to see the doctor because a friend was worried about me.” Rachel was eventually diagnosed with coronary heart disease at the age of 37. Luckily, she was treated very quickly and given a drugeluting stent to help unblock one of her main arteries. “It was instant, I felt like it was the first time I had taken a deep breath in years,” she explained. Although Rachel was physically getting better, mentally it took a lot longer for her to accept what had happened. “I knew that stress had contributed to my heart disease. The work itself wasn’t stressful, but the work culture was – I didn’t have much of a support system. I felt very boxed in, and I had fallen out of love with being a lawyer.” Three years after her operation, Rachel has now completed a triathlon and started up her own consultancy agency where she teaches companies how to support each other and work effectively as a team. She also provides advice to other lawyers wanting a career change. “In a way I’m teaching my younger self what would have really helped me,” she said. Stress can affect people in many ways. In stressful environments our bodies often have a physiological response that includes activating our ‘fight or flight mode’. Such responses are important in the short-term, but can be harmful if left unchecked. Long-term high levels of stress hormones such as cortisol are known to cause obesity, diabetes and heart and circulatory diseases. Dr Mark Nixon, postdoctoral research fellow at the University of Edinburgh, and his team are investigating how we can protect our

vulnerable tissues such as our fat against high levels of stress hormones that cause heart disease. Stress hormones circulate in the blood bound to a transport molecule called corticosteroid-binding globulin (CBG), which controls their activity. In a BHF-funded project Dr Nixon first hopes to understand how CBG controls how the hormones reach the fat tissue to carry out their actions. By studying that control mechanism in obesity and type-2 diabetes, his team will establish if blocking this delivery pathway protects fat tissue from the harmful effects of high stress hormones. The results will provide important insights into potential therapeutics that block the delivery pathway and could be used to treat metabolic conditions like obesity and prevent heart disease. q

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Problems with the use of medical compression stockings to prevent DVT By PHILIP COLERIDGE SMITH DM MA BCh FRCS Consultant Vascular Surgeon, Medical Director of the British Vein Institute and Emeritus Reader in Surgery at UCL Medical School

[CURRENT ADVICE from NICE

contained in NICE Guideline 89 concerning the prevention of deep vein thrombosis (DVT) includes the use of medical compression stockings in almost all hospital inpatients in order to minimise the risk of DVT. However, inappropriate use of antiembolism stockings may give rise to severe damage to the lower limbs, in some cases leading to the need for amputation. I have advised in a Full-length anti-embolism stockings number of cases where substantial damage has arisen to the lower limbs of claimants by this mechanism.

How do medical compression stockings work?

Medical compression stockings have been use to prevent deep vein thrombosis for several decades. It is supposed that patients with limited mobility experience low flow velocities in the lower limb veins which also dilate, especially during surgical procedures. It has been shown that the application of medical compression increases the flow velocity and reduces the swelling of veins.

How well to medical compression stockings work to prevent DVTs?

Numerous clinical data have been published over the years in which the efficacy of compression stockings has been evaluated in preventing DVTs. Some of the older studies received criticism because they used methods of detection of DVT that are no longer in use. A recent publication in the Cochrane Database analysed 20 more recent randomised clinical trials in a meta-analysis. The authors concluded that medical compression stockings led to a 65% reduction in the frequency of DVT in a wide range of hospital patients. These data support the current recommendations for use of anti-embolism stockings in hospital practice.

Contraindications to the use of medical compression stockings

As a result of this problem NICE recommends that the use of compression stockings is contraindicated in patients with lower limb arteries disease, those undergoing vascular surgery in the lower limb and those with peripheral neuropathy, which would include many diabetic patients. I have advised in cases where compression stockings have been applied to the lower limb in patients with severe lower limb arterial disease leading to the development of gangrene and the need for below-knee amputation.

Monitoring of pressure areas and skin condition after the application of compression stockings

The manufacturer’s instructions for use for medical compression stockings mentions the need for regular removal of the stockings for monitoring of the skin condition. The minimum frequency advised in the instructions is one to three times per day. However, some patients are at risk of forming pressure ulcers over the heels, hips and sacrum due to advanced age, frailty and neurological problems. It is standard nursing practice to evaluate patients in hospital for their risk of pressure area damage and in many patients this necessitates inspection of the pressure areas every four hours. Of course, if the lower limbs are contained in anti-embolism stockings these must be removed for inspection of the skin on the heels. Nursing experts consider that failure to maintain this regime regularly may comprise substandard care. I have been asked to advise in cases where compression stockings were not removed at all for several days or even a few weeks. In one case, an intravenous cannula had been included beneath the stocking which was only revealed when the stocking was removed. The result was loss of skin over a 2cm diameter area and an ulcer which healed very slowly. In other cases when the stockings were removed after several days or weeks, the heels had become necrotic and large non-healing ulcers developed leading to the need for below-knee amputations.

Application of compression to the lower limb is appropriate except where this may interfere with the blood flow to the leg. In patients with normal lower limb circulation medical compression stockings will not normally give rise to damage. However, where arteries in the leg are blocked the blood pressure is reduced and the compression applied by the stockings may slow blood flow in some regions or lead to complete cessation of blood flow. This prejudices the wellbeing of the leg. In patients over the age of 75 years, about 20% of patients have significant lower limb arterial disease with blocked A heel ulcer arising from anti-embolism stockings or narrowed arteries.

Conclusions

The use of anti-embolism stockings is common practice in hospitals and is supported by advice from NICE. However, severe damage to the lower limbs may occur when stockings are applied to patients with lower limb arterial disease, contrary to the advice from NICE and the manufacturers of stockings. Failing to observe pressure areas over the heels regularly or failing to remove the stockings may lead to avoidable ischaemic damage to the limb. Such cases may be pursued successfully by the claimant in many instances. q www.yourexpertwitness.co.uk

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Cataract audit reveals continuing improvement [THE Royal College of Ophthalmologists (RCOphth) has published

its fifth annual report for the National Ophthalmology Database (NOD) audit for cataract surgery. Overall the audit findings indicate high-quality cataract surgery is being delivered to NHS patients with a continuation in the trend seen over the past decade towards improvement. The report covers operations undertaken between 1 April 2020 and 31 March 2021, with data collected from 182,606 cataract operations – accounting for approximately 72.5% of operations performed in England and Wales during the 2020 NHS year. The total figure of 251,700 represents a reduction from the approximately 476,000 carried out in 2019, prior to the COVID pandemic. Since the inception of the national cataract audit in 2010 there has been around a 50% reduction in posterior capsular rent (PCR)

complications and a 38% reduction in visual acuity (VA) loss following cataract surgery, equating to approximately 4,500 fewer complications annually across the NHS and an estimated annual saving from avoided additional treatments of £2.5m. The RCOphth continues to work with sponsors, NHS trusts and organisations to ensure that the NOD increases the number of contributors, gathers data and develops insightful analysis to improve overall national cataract surgery services, both in the NHS primarily but also by private providers. The audit provides risk-adjusted results for centres and surgeons, enabling them to benchmark their own performance against their peers and prompts actions and solutions for improvement in service delivery and patient care, the RCOphth says. q

Call for evidence on Opticians Act is an opportunity for reform [THE General Optical Council (GOC) has issued a call for evidence

on the need for change to the Opticians Act and a consultation on associated GOC policies. Both offer a unique opportunity for stakeholders including patients, the public, registrants, sector bodies and employers to ensure that legislation and regulation are fit for the future. The government’s planned reforms to health and social care legislation have prompted the GOC to consider what further changes are needed to those parts of the Act that are specific to the GOC or the practice of optometry and dispensing optics. The call for evidence runs until 18 July and seeks views, information and factual evidence on a number of topics, such as protection of title, regulation of business, sight testing, the fitting of contact lenses, the sale of optical appliances and remote care. Marcus Dye, GOC’s acting director of regulatory strategy, said: “This is a unique opportunity for our stakeholders to have their say on the future of legislation and regulation. The information and evidence we collect will inform the development of any business case for future change to the Act, as well as inform whether we should consider making more immediate changes to our associated policies. “We will analyse the responses received and consider the need and strength of the case for change and whether further research and analysis of impact is required. If, as a result of the call for evidence and the consultation, we consider changes to legislation or GOC policy are necessary and can be evidenced, we will carry out further public and targeted stakeholder consultation activities on any proposals. “We hope that stakeholders will be excited by this opportunity to provide evidence on what needs to change or stay the same in order to ensure that regulation remains relevant, fit for the future and protects patients.” Responding to the call for evidence, LOCSU, the Local Optical Committee Support Unit, published a guidance document. In it LOCSU says: “Changes to the Act would require time in the government’s legislative agenda and then approval by Parliament. Given that Parliament has only recently concluded procedure pertaining to the Health and Care Act 2022, and that Integrated Care Systems and then the Provider Selection Regime are current priorities, any changes to the Act could potentially take three to five years to become law. “This is no reason however for not making the case for sensible

updating where this would enhance patient protection based on evidence, so that the sector is ready to make the case for change if and when the opportunity arises.” The College of Optometrists said: “The college will be at the forefront of this review, gathering evidence for our submission, and responding to the consultation on behalf of our members and the profession. We will be asking members for input over the course of the consultation period, and urge all optometrists to get involved to ensure their voices are heard.” q

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People with serious eating disorders to get more help

[

SIGNS THAT SOMEONE with an eating disorder is dangerously ill are often missed by healthcare professionals due to lack of guidance and training. The Royal College of Psychiatrists has therefore launched new Medical Emergencies in Eating Disorders guidance for frontline staff so people with eating disorders needing urgent care can be identified and treated earlier. Hospital admissions for eating disorders have increased by 84% in the past five years reaching a total of 24,268. New Royal College of Psychiatrists’ analysis of hospital data for eating disorders shows 11,049 more admissions in 2020/21 compared to 2015/16. Children and young people with eating disorders are the worst affected, with a rise of 90% in the five-year period – from 3,541 to 6,713 episodes – and a 35.4% increase in the past year alone. A stark rise of 128% is seen in boys and young men: from 280 hospital admissions in 2015/16 to 637 in 2020/2021. An increase of 79% is also seen in adults across the five years. The main barrier to spotting patients at risk is that, even when seriously unwell, people with eating disorders can appear to be healthy, with normal blood tests. Dr Dasha Nicholls, who chaired the development of the Medical Emergencies in Eating Disorders

guidance said: “Eating disorders such as anorexia, bulimia and binge eating don’t discriminate, and can affect people of any age and gender. They are mental health disorders, not a ‘lifestyle choice’, and we shouldn’t underestimate how serious they are. “Even though anorexia nervosa is often referred to as the deadliest mental health condition, most deaths are preventable with early treatment and support. Full recovery is possible, if spotted and treated early. “We need to raise awareness of common eating disorders symptoms. Our guidance encourages healthcare professionals to spot when someone is dangerously ill, and dispel the myths surrounding them. They remain poorly understood with devastating consequences for thousands of patients and their families. “If we are to stop the eating disorders epidemic in its tracks it’s vital that this guidance reaches healthcare professionals urgently and that government backs them with the necessary resources to implement them.” One in five deaths of people with anorexia nervosa are due to suicide, alongside very high rates of self-harm and comorbid depression across all eating disorder diagnoses. q

Competence framework looks to improve inpatient care [A NEW COMPETENCE FRAMEWORK,

endorsed by the British Psychological Society, has been developed by psychologists in a bid to improve the care of mental health patients with complex needs in hospitals. The multidisciplinary framework outlines the skills and knowledge required by professionals to deliver high-quality adult and older adult acute mental health inpatient care. The framework is underpinned by a psychosocial model, which is a form of care that focuses on improving people’s psychological wellbeing and social functioning. That includes interventions such as talking therapies, self-help material and support with coping strategies to help improve a person’s quality of life. Dr Lisa Wood, one of the lead authors of the framework, said the driving force behind its development was to ensure inpatients have access to a wide variety of treatments and interventions, and subsequently improve care. Acute mental health inpatient care has often been criticised for being over-reliant on pharmacological treatments and the Care Quality Commission has highlighted a lack of psychosocial interventions available to inpatients. Dr Wood, a clinical psychologist and researcher working across UCL and North East London NHS Foundation Trust (NELFT), explained: “This was echoed by patients who frequently request access to psychosocial interventions in this setting but often do not receive them.” Chartered BPS member Professor Tony Roth, who advised on development of the framework, added: “Inpatient care has also been shown to (re)traumatise some patients through a lack

of trauma-informed care and the overuse of restrictive practices. Improving the delivery of psychosocial interventions and care in this setting is therefore a priority.” He added that the framework was a welcome addition to the suite of 22 others that had been published on the UCL Centre for Outcomes, Research and Effectiveness site. They cover psychological and individual therapy

approaches to a range of clinical conditions. The new framework has been developed by researchers and clinicians at UCL and NELFT. It has also been endorsed by the Royal College of Nursing and the National Collaborating Centre for Mental Health, which is a collaboration between UCL, the Royal College of Psychiatrists and the Association of Clinical Psychologists. q

LPAs: safeguards needed for vulnerable people [MORE NEEDS TO BE done to ensure disabled, vulnerable and older people are not

negatively affected by new digital lasting power of attorney (LPA) services announced by government, the Law Society of England and Wales said. LPAs give sweeping powers over life decisions when an individual’s mental capacity is diminished, delegating a whole raft of issues to a nominated person – the ‘attorney’ – to make calls on everything from finances to living arrangements. The Ministry of Justice (MoJ) and the Office of the Public Guardian (OPG) launched a consultation in July 2021, seeking views on how modernising the LPA service could increase efficiency and make LPAs more accessible via a digital channel. “LPAs are arguably one of the most important legal documents that a person will make because they delegate such wide-reaching powers over their life,” said Law Society president I Stephanie Boyce. “The consequence of an attorney making a poor decision could be the loss of all their assets, being put into a care home against their current or past wishes, or even their premature death. “We welcome the MoJ’s commitment to improve the speed and accuracy of making an LPA, as well as to continue to provide a paper service. Many people – such as those in care homes or people with learning difficulties – will continue to need to make an LPA via a paper process. “We are pleased the government is looking at proposals to improve support for those who will struggle with using digital channels, as more needs to be done to ensure the reforms do not negatively impact vulnerable, disabled or older people.” q www.yourexpertwitness.co.uk

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So who is the ideal expert? In this follow-up to his series of articles on the criminal expert, Dr Mark Burgin BM BCh (Oxon) MRCGP DCH CPE Dip Med Ethics answers a number of questions on what it is to be a GP expert witness. In your book ‘The Art of Personal Injury Report Writing’ you say that a GP in current practice may not be the best expert for a case. Why is that? There is a general fallacy that being in current practice is the only way that an expert can know what is going on. Knowledge tests indicate that about 30% of clinically active GPs have deficient knowledge. GPs keep up to date by reading the BMJ in the same way as GP experts.

with appendicitis, where until recently the correct treatment was appendicectomy. Recent research has suggested that antibiotics can be used instead. I need to be aware that there is a range of opinion where one did not exist before. A GP in current practice may not be aware of that change if, for instance, the local care pathways have not changed.

You have suggested that those GPs are often too busy to keep up to date as a GP and an expert. When I first started in medicolegal work the judges were tolerant of the amateur expert who relied upon their clinical skills to provide their report. Judges are increasingly critical of experts who are not up to date in the law as well as their area of expertise. What is the answer to that dilemma? How many hours CPD do experts need to do to keep up with the law? The knowledge base is growing and it would take between 1,000 and 2,000 hours of study for a doctor to qualify as an expert; however, there are courses with as little as 50 hours. Keeping up to date typically takes 50 hours a year, although many experts do 100 hours of study. As a GP is only allocated 50 hours of study a year they do not have time to study enough law and keep up with medicine. You studied the law conversion course CPE and a Diploma in Medical Ethics – a total of 2,000 hours. Do experts need that to be qualified? In my experience many experts who have worked for years as a medicolegal expert have adequate levels of legal understanding. A major problem is that often the most experienced experts are no longer in clinical practice and GPs without the necessary expertise are instructed instead. In complex cases only an expert with qualifications will have the required expertise. Do you experience any problems with being accepted as an expert? I try to make sure that my report already deals fully with my experience and expertise, so that the court can see why I am an expert.

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What if the material issues include current practice? Any case based upon whether a GP was up to date will be weak and any expert – even one in current practice – is going to be challenged. I explain to the instructing solicitor that I am not the right expert for the case. That surprises solicitors, but I prefer to explain why they need a different approach so that they are aware of the problem. Where a GP in current practice is a possibility, I discuss the fit between my skills and the needs of the case and will only proceed if the solicitors are happy with that. Sometimes the other side initially do not agree to the report, but always change their mind when they understand its content. What do you say when you are challenged for not being in current practice? On the two occasions where that has occurred the barristers concerned were trying to defend GPs who had fallen well below the standard expected. They asked leading questions containing fallacies, trying to argue that their GPs did not have to follow NICE guidance, GMC Good Medical Practice 2013 and the terms and conditions of service I explained that all doctors must follow those regulations and there is no range of opinion. I explained that, despite all the advances over the past 100 years, doctors cannot practice safely if they refuse to examine sick patients. How do you deal with cases where the published guidelines are not clear? I am careful to recognise a case where the clinical management is changing; for example

Who are the perfect experts? There are no perfect experts. Any expert will have strengths and weaknesses, so what matters is the fit. Does the instructed expert have the right skills for the case? That means the solicitor has to know how the case will be decided: is it an ethical case or a knowledge case or a current practice case or a neglect case? The right expert can only be determined by comparing the material issues with the expert’s skills. Are there any cases where a less than perfect expert is permitted? The overriding objective is to deal with cases fairly and proportionately. It is likely that the best expert will not be available for any fee supported by the case. In that situation it is essential for the solicitors to find an expert who is the best value for money. In very low value claims the choice may be very limited. q • Contact Dr Mark Burgin on 0845 331 3304, email drmarkburgin@gmail.com or visit www.drmarkburgin.co.uk

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