Programme – Proposed Programme Basic Report Writing Sept 2012
Cost – £65 Members £90 Non Members

Download an application form here Application Form Sept 12. 

For any other information, please email Virginia Daly on info@mlacp.org.uk

Present: Sue Edwards (Hon. Chair), Judith Bentley (Hon. Secretary) Brian
Simpson (Hon Treasurer), Susan Filson, Pauline Pope, Kate Sheehy, Kevin Reese,
Zena Schofield, Patricia Bartley, Jenny Archer, Katarzyna Czubak, Sarah Daniel,
Alison Phillips, Nicky Edwards, Sara Edmundson, Brigitt Bailey, Jackie Clifford,
Carol Mckay, Mary Harrison, Lorna Stybelska, Sandra Snell, Alison Fedeli, Jon
Graham, Gerry Harlow, Sue Paddison, Pamela Simpson, Will
Winterbotham, Malgorzata Lachut, Alison Fedeli & Alison Skinner,

1. Apologies:
Paul Errington, Caroline Dunn, Simon Ashton, Margaret Revie, Pabla Kaushalya, Jacqueline Crosby, Lousie Cousins, Nikki Adams, Liz Candy, Di Coggins, Juliet Weston, Janet Hornby, Di Quinlivan, Sarah Bond, Heather Epps, Eileen Kinley, Alice Pringle, Susan Curran & Jennifer Whittall.

2. Minutes of 13th AGM held on 19th November 2010:
These were agreed and signed as a true record and unanimously adopted, after being proposed by Pauline Pope and seconded by Lorna Stybelska.

3. Matters Arising
There were no matters arising.

4. Chair’s Annual Report:
Sue Edwards read her report; a copy of which will be posted on the website. Sue explained that she is standing down from the position of chair, which is being taken on by Sue Filson.

5. Programme Organiser’s Annual Report:
Susan Filson summarised the events that had been organised in 2011. There had been 3 courses, plus today’s event, all of which had been well attended. The topics were: Court Room Skills, Aquatic Therapy & Litigation, Introduction to Medico-Legal Work. Courses being planned for 2012 include a 2 Day Adult & Paediatric Neurological Medico-Legal Course and an Introductory Course, which will be held either in the North or the Midlands. There is also the possibility of running a combined day with Physio First. Sue thanked the committee members who had helped her with organising the programme and went onto say that she will be handing over the role, as she is taking on the role of Chair of MLACP.

6. Treasurer’s Annual Report:
Brian Simpson circulated copies of the accounts and spoke to his report, which is attached as an appendix to the minutes.
In summary there is a surplus, which is a consequence of an increased income brought about by an increase in the membership and income from courses. The surplus will be used to issue each member in 2012 free copies of the 4 Little Books published by the UK Register of Expert Witnesses.
The accounts were unanimously accepted after being proposed by Patricia Bartley and seconded by Kate Sheehy.

7. Public Relations Officer’s (PRO) Report:
Kevin Reese, who took over from Eileen Kinley as PRO, circulated copies of his report.

8. Election of Officers:
All the current members are willing to continue to serve. Acceptance of the committee was unanimous after being proposed by Pamela Simpson and seconded by Jackie Clifford. The committee will be as follows: Hon. Chair- Susan Filson, Hon Secretary- Judith Bentley, Hon Treasurer- Brian Simpson, PRO- Kevin Reese,
Diversity Officer & Web Site Coordinator–Kate Sheehy, Education Programme Officer – Paul Errington, Sue Edwards, Zena Schofield & Pauline Pope.
Offers to serve on the committee have been received from Sarah Daniel, Lorna Stybelska and Simon Ashton.

8. Amended Constitution:
Judith Bentley explained that minor amendments to the constitution were required by the CSP. This had become necessary for all such CSP organisations due to the replacement of the Clinical Interest/Occupational Groups (CI/OGs) by the Professional Networks. The draft of the amended version had been posted on the website in advance of the AGM.
There was a unanimous show of hands accepting the amended constitution.

9.0 Items brought to the attention of the Committee:
Two emails had been received by the secretary. One requested that consideration be
given to run courses in the North. The other was a request for a study day dealing
with legal updates for expert witnesses.

10.0 Date of Next AGM:
This will take place at the CSP 14, Bedford Row on Friday 9th November 2012

The meeting closed at 10.25am and was followed by the study day.

14th Annual General Meeting

25th November 2011

CHAIRMAN’S REPORT

Welcome to you all at this 14th Annual General Meeting of the Medico-Legal Association.

I would like to first of all introduce you to the committee members who have worked tirelessly on your behalf in the past year.

• Judith Bentley, our long serving and extremely well organised secretary
• Sue Filson, who will become our new chair as from today
• Kate Sheehy, diversity and technical officer and web site coordinator
• Brian Simpson, treasurer and editor of the newsletter / bulletin
• Paul Errington, programme organiser
• Kevin Rees, programme organiser and PRO
• Zena Schofield
• Pauline Pope.

In spite of these designated positions, all members of the committee assist with various tasks as required. For example, Pauline and Zena with admirable support from Kevin have been the main players organising what I hope you will find to be an extremely interesting programme for today.

I am sure all members will join me in thanking Miranda Hall, my PA for her invaluable contribution over the past two years. She has worked closely with Shane Freer to ensure the smooth running of the web page and updating the content as information arrives on her desk. I am sure you will have noticed the improvement and hopefully find this much easier to use. She has fielded all enquiries, forwarding them on to the appropriate committee member and continues to maintain the membership list, politely requesting the relevant details when these are omitted! Miranda will be handing over the baton to Virginia Daly, Sue Filson’s PA as Sue takes over the chair of this organisation.

Professional networks have now superseded the clinical interest groups and MLACP is within the occupational group. Unlike some of the more clinically based groups this was a fairly straightforward procedure but we have had to make minor adjustments to the constitution. Judith will be highlighting these later in the meeting and will ask for your ratification. Difficulties arose with the CIGs that did not have 100 members as this was the criteria for being accepted within the Professional Networks. With a membership of over 180 there were no difficulties for MLACP.

As always, I would like to reiterate the importance of data protection. All physiotherapists who handle patient’s records need to be aware that they are required to be registered under the Data Protection Act. There have been further developments over the past few months. Various forms of password protection and encryption are now being used to safeguard the client and all documentation is now sent via recorded delivery. At the present time, this relates primarily to the NHSLA but I feel sure this will expand to include all instructing solicitors.

There have been key developments over the past year, perhaps the most notable being the loss of immunity for expert witnesses which Chris Pamplin will be discussing this afternoon and the capping of expert fees.

Last year I referred to Lord Justice Jackson’s proposal’s on litigation costs which was published in December 2009. As I am sure you will be aware, this has now been taken forward and as of 3rd October 2011, all legally aided cases will be paid at an hourly rate of £81. Although there is provision for ‘exceptional circumstances’, I am not aware of how these will be determined. At the recent Annual Bond Solon Expert Witness Conference I posed the question, why were physiotherapists to be paid £81 an hour whether they resided in London or out of London, whereas speech and language therapists were on £90 in London and £99 out of London and occupational therapists were £68 in or out of London. The panel suggested that I contact the LSC directly but I confess I have not as yet done so. Even more bizarrely, I have a quote from a Consultant Neurologist: “a London Accident and Emergency Consultant’s time is valued more than a London Neurologist’s but less than an out of London Neurologist, whilst a Neuroradiologist is allowed more than everyone else! That you are able to pay a Neurologist outside London £153/h but one in London only £90/h is also completely nonsensical and unjustifiable”. As you can see, there is considerable opposition to these changes. If anyone has any specific queries regarding this, I would be happy to discuss them during the lunch break.

I trust that you all have an enjoyable and informative day.

Sue Edwards
Chair

Physiotherapists working in Paediatric and Adult neurology who are interested in – or have some experience in preparing reports for Medico-Legal purposes.

Dates: 17th and 18th April 2012
Venue: CSP, 14 Bedford Row, London WC1R 4ED
Course Leaders: Eileen Kinley MCSP and Sue Edwards FCSP
Cost: £200 – MLACP Members
£250 – Non MLACP Members

SPEAKERS

Laura Barlow Irwin Mitchell Solicitors
Robert Wilson Capsticks Solicitors
Christine Henson Barrister
Dr Fiona Jones Physiotherapy Lecturer, Kingston University
Dr Lewis Rosenbloom Paediatric Neurologist
Sue Edwards Expert witness physiotherapist
Eileen Kinley Expert witness physiotherapist

If you have any queries please email (Eileen Kinley): eileen@83waterloo.co.uk
0151 236 0840 or 07712 185 422

Download Programme: Programme

Download Applicatin Form: Application Form

VAT is applicable to most businesses in the UK. If you believe you need to register for VAT you will charge your customers VAT and be able to redeem the VAT you are charged by others.

You should register if:

‘your turnover for the previous 12 months has gone over a specific limit – called the ‘VAT threshold’ (currently £73,000) or you think your turnover will soon go over this limit’.

To register for VAT you should start by downloading form VAT 1 and note that from 2012 all VAT transactions will be conducted online.

http://search2.hmrc.gov.uk/kb5/hmrc/forms/view.page?formid=986&record=OmPa6ruQM2U

The Good News

HPs have exemption from tax if the income derived from the service has ‘the primary purpose of the services is the protection, maintenance or restoration of the health of the person concerned.’ VAT Notice 701/57.

Or in the case of motor insurance:

‘… where medical services are provided under a policy to assist enabling an injured motorist to return to full health and/or work. (Note – this does not include medicals undertaken for DVLA purposes to ensure initial or continued fitness to drive which are liable to VAT at the standard rate). Any other medical service provided in connection with an insurance policy where the principal aim is to assist in restoring the health of the individual.‘

The Bad News

Unfortunately medical legal work is VAT taxable at the full rate:

‘If his includes such work as medicals, reports and expert witness testimony for the judicial system and is considered to be taxable. This is the case even where the services supplied are for the purpose of the Family Courts and where the ultimate decision arrived at by the court may concern the well-being of an individual. This is because the principal purpose of the services supplied is to enable the court to take a decision.’

The Mixed News

There is a VAT allowance called the Flat Rate VAT Scheme which enables small businesses (currently under 150 to 187k depending) to pay a flat rate VAT below the 20% threshold. Unfortunately the calculation for this includes income derived from activities which may also be exempt from VAT, i.e. traditional private physiotherapy treatment work. Whether you would benefit from this scheme depends upon your total turnover of VAT inclusive and VAT exempt earnings and the relative mix between the two. For further information go to:

http://www.hmrc.gov.uk/vat/start/schemes/flat-rate.htm#1

Closing Thought

This guide is to be considered as general advice only. Each individual’s business and personal taxation can be complex and unless very straight forward we suggest the appointment of a good accountant. Nov 2011.

Other Sources

http://www.hmrc.gov.uk/vat/forms-rates/rates/goods-services.htm

and follow links:
1. health, education, welfare and charities

2. Health services provided by registered doctors, dentists, opticians, pharmacists and other health professionals VAT Notice 701/57

3. 2.3 What services performed by health professionals are exempt from VAT?

General Principles

If you handle or store data in respect of patients there are certain legal and professional obligations you must consider and apply in respect of the Data Protection and Freedom of Information Act. Generally they fall within 8 established principles, which for a fuller understanding you may wish to visit:

http://www.ico.gov.uk/for_organisations/data_protection/the_guide.aspx

Do I need to Register?

If you do not ‘process’ or ‘control’ information regarding your clients on a computer it is not necessary to register for the data protection. If in doubt it may be useful to check using the ‘self assessment’ questionnaire on the webpage at:

http://www.ico.gov.uk/for_organisations/data_protection/notification/need_to_notify.aspx

If you fall within the criterion for notification you can do so by registering on 01625 545740, or online on http://www.ico.gov.uk/notify/4b.html

Are there any other considerations resulting in my work as an Expert Witness?

If your clients have connections with the NHS eg NHSLA, your data handling may present a different set of obligations over and above those set out by the Data Protection Act.

1. Good practice in general requires hard copy documents especially specific to a patient’s identity and medical issues should be sent and if necessary    returned by registered post.

2. Hard copies not requiring return should be shredded and disposed of immediately after their use has been served by the expert.

3. Electronic data received (as in point 1), should have a suitable encryption programme which protects the patient sensitive data from cyber molestation. And here is the difficulty, commissioning solicitors do not use the same encryption software and experts are required to have at their terminal end, the same software to enable the safe transaction of the information. MLACP members have found this requires varying degrees of complexity and can be a difficult and time consuming requirement of the NHSLA’s procedure.

Constitution – Draft amendment June (2) 2011

Cost:
£55 – MLACP Members
£90 – Non MLACP Members

The topic of this one day meeting is of great importance to ALL therapists working in both public and private sectors.

Speakers will cover topics relating to Health Professions regulation; Loss of Immunity on expert witness practice and PHSO – Its Role in NHS Complaints and the role of the Clinical Advisor.

For further details please contact: Pauline Pope: p.m.pope@btinternet.com

Download Course Programme: AGM Prog 2011

Download Application form: Application form Nov 2011

“Hot tubbing” is a new method of experts giving evidence at civil trials. It is also known as “judicially mediated discussion” and “concurrent evidence”.
The practice originated in Australia and was researched by Lord Justice Jackson when preparing his report aimed at reducing the costs of civil litigation. Jackson was in favour of hot tubbing and suggested that it be piloted for expert evidence in court cases where all parties and the judge agree to it. Such a pilot is now taking place in the Technology and Construction Court in Manchester.

The traditional order of evidence at trial is all of the claimant’s witnesses of fact, followed by the claimant’s experts, followed by the defendant’s witnesses of fact and then the defendant’s experts. Each expert witness gives evidence in chief in response to questions put by the barrister or other advocate of the party on whose behalf he is instructed, followed by cross examination by the opposing advocate and then re-examination. The judge may ask some questions, but generally plays a passive role and simply takes notes.

This order of evidence has already changed to some extent in clinical negligence trials, where all of the witnesses of fact generally give evidence first, and the experts in each discipline then give their evidence “back-to-back” (i.e. the claimant’s expert in a particular discipline, followed by the defendant’s expert in that discipline, followed by the claimant’s expert in the next discipline and so on). This makes it easier for the judge to compare what the rival experts are saying about the issues within their expertise.

Hot-tubbing takes this several steps further. It involves experts in the same discipline or possibly several related disciplines giving evidence at the same time. In theory, the experts are in the witness box together. In practise, there is not enough room, so the jury box is used.

Practice varies as to exactly what happens next. In all variations, the judge leads the discussion and asks most of the questions. Experts often have to answer the same question, one immediately after the other. The experts can also put questions directly to their counterparts.

The role of the advocates is unclear. In Australia, they can suggest questions for the judge to ask. When hot-tubbing has been used in international arbitrations, the advocates have an opportunity to cross examine the experts after the judge has finished his questions. However, Jackson seems to think that hot-tubbing would be used instead of cross examination.

The theory is that hot-tubbing will save time and therefore legal costs. Experts are more likely to make concessions in the hot tub than in the more partisan environment of hostile cross examination. It is easier for the judge to indentify the issues by comparing the opposing experts’ answers to the same question given at the same time. Any errors will be immediately identified by the other expert. There is likely to be more agreement.
Lawyers are concerned that hot-tubbing will mean that they lose control over the presentation of their client’s case. More of the burden of explaining why one expert view should be preferred to the other would then fall to the expert witnesses.

If an expert is asked to give evidence in this way, it is essential that they are confident and able to advocate and justify their opinions. They will need to explain their view to the judge and simultaneously deal with immediate searching questions from the opposing expert. They will also need to be alert to opportunities to demonstrate flaws in the opposing view by asking pertinent questions of their own. Hot-tubbing may appear less adversarial than the traditional methods of giving evidence, but concentration and thorough preparation will be vital.
Email: jon.nicholson@anthonygold.co.uk Tel: 0207 940 4000

Are you ready for the Hot Tub?
Conflicts of interest
Ali Malsher – Partner, personal injury and clinical negligence teams

Experts may be forgiven for assuming that accepting instructions and receiving confidential information from one party to litigation precludes them from acting as an expert for the opposing party at a later date. However, in a slightly bizarre decision, a High Court Judge has recently held that this is not necessarily the case.

In Meat Corporation of Namibia Ltd v Dawn Meats (UK) Ltd, the court ruled that the evidence of an expert who had previously agreed to act for the claimant but later changed her mind and was later involved on behalf of the defendant could still be allowed. This was on the basis that the claimant was then entitled to challenge the independence of this expert in cross-examination at trial.
The circumstances are that the expert in question (a Mrs Burt-Thwaites) agreed to act on behalf of the claimant and therefore received instructions including confidential and privileged information. However, Mrs Burt-Thwaites then realised that she had previously had commercial dealings with the defendant and therefore told the claimant that she could no longer act because of a conflict of interest. The claimant therefore instructed another expert.

The defendant had also instructed another expert, but later changed its mind and instructed Mrs Burt-Thwaites instead. She gave undertakings to the court not to disclose or rely upon the confidential and privileged information which she had been given when previously accepting instructions from the claimant.

The claimant was not satisfied and contended that the defendant should not be permitted to call Mrs Burt-Thwaites because of the information which she had received from them and because of her previously declared conflict of interest.

The court’s judgment reviewed previous cases on this subject in detail and set out the following general principles:-
• It is desirable that an expert should have no actual or apparent interest in the outcome of proceedings, but the existence of an interest does not render their evidence inadmissible. It is the nature and extent of the interest that is relevant, not the mere fact of it.
• Where an expert has an interest in the outcome of litigation, the issue of whether they should be permitted to give expert evidence should be dealt with at the earliest possible stage in the course of case management.
• The decision as to whether an expert should be permitted to give evidence is a matter of fact and degree for the court. The test of bias is not relevant.
• The important questions to be determined are: (1) has this person a record of expertise in the area in question? And (2) are they aware of their duty to the court and can they carry out that duty despite their interest or connection with one party?
• It is for the judge to decide whether evidence should be excluded. However, even if an expert has an interest which is not sufficient to prevent them from giving evidence, that interest may affect the weight to be attached to their evidence.

The court also commented that if for some reason it was not possible to resolve any questions regarding the expert during the course of case management, it may be possible to deal with this at trial.

Fundamentally, therefore, even if an expert has previously worked on behalf of one party, this does not bar or prevent them from working for other parties. However, it clearly raises difficult issues both for solicitors and experts. On a practical level, experts should identify at the outset whether there is likely to be any potential conflict and confirm this immediately to the enquiring solicitors. They should also make it clear that they do not wish to receive any privileged or confidential information until any such issue has been resolved and instructions formally accepted.

In addition, although clearly an expert can act in circumstances where they have received confidential or privileged information and may have an interest in the outcome of the proceedings, they are likely to have a fairly rocky ride in court if the matter is not resolved before then. Experts in this situation should be prepared to have their interests questioned in a way which may be fairly unpleasant for them and to have to address additional questions in relation to their own work and practice which may not be easy.

The best defence to all of these issues is of course not to act in any case where there may be a conflict of interest. If the case is one where it is considered that the expert can act, they should be aware of the issues which are likely to be raised.
Email: ali.malsher@anthonygold.co.uk Tel: 0207 940 4000

Court of Appeal clarifies expert witness role

The recent decision of Stanley v Rawlinson gives some useful clarification of the role of the expert witness.
Stanley v Rawlinson was not a personal injury or a clinical negligence claim. It was an acrimonious dispute between two neighbours concerning a boundary wall which had collapsed. Both sides instructed expert engineers, who gave conflicting evidence as to the cause of the collapse. The Judge had to decide which expert evidence to accept.

The Judge decided that he preferred the evidence of the Defendant’s expert, Mr Leeds, over the evidence of the Claimants’ expert, Mr Croucher. He gave his reasons as follows:-
“Mr Croucher’s conclusions remained favourable to the Claimants notwithstanding adverse developments in the evidence. Also, I was shown correspondence between him and the Claimants in which he appeared to go beyond the usual role of an expert witness by advising them on the evidence they needed to meet the opposing case; when taxed on this in cross-examination he maintained that he owed a dual duty to the court and to his ‘client’. When choosing between the two, I would generally therefore favour Mr Leeds’ evidence, all else being equal.”

The Claimants appealed on a number of grounds, including that the reasons given for preferring the evidence of Mr Leeds were not valid.
Although the Claimants were not successful, the Court of Appeal agreed with them on the expert evidence point.
The court held that Mr Croucher was quite right to observe that he owed a duty to his client as well as to the court. This is inherent in the concept that experts owe an overriding duty to help the court. This duty overrides the experts’ duty to their client, but this does not mean that their only duty is to the court.

Lord Justice Tomlinson went on to say:-
“Experts are often involved in the investigation and preparation of a case from an early stage. There is nothing inherently objectionable, improper or inappropriate, about an expert advising his client on the evidence needed to meet the opposing case, indeed it is often likely to be the professional duty of an expert to proffer such just advice. The opinion of an expert is often if not usually dependent upon the precise nature of a factual situation which he must to some extent assume to have existed. There is nothing improper in pointing out to a client that his case would be improved if certain assumed features of an incident can be shown not in fact to have occurred, or if conversely features assumed to have been absent in fact can be shown to have been present.”
This case is therefore a reminder that the experts’ overriding duty to the court does not require strict neutrality. Although this duty must be complied with and the report must express the expert’s true and complete professional opinion, there is nothing to prevent an expert from assisting their instructing solicitors by advising on how the client’s case might be strengthened. The Court of Appeal’s decision provides reassurance to any expert who might be concerned that giving such advice was improper.
Email: jon.nicholson@anthonygold.co.uk Tel: 0207 940 4000

Court of Appeal discourages “expert shopping”
Experts should note that their reports can be disclosed against their wishes or those of the instructing legal team, following a recent decision of the Court of Appeal designed to combat the perceived problem of “expert shopping”.

“Expert shopping” is a disparaging term for obtaining a second opinion. If a party obtains a report from one expert which is not favourable to their case, it is open to them to instruct another expert and to rely instead on the second report if this is favourable. Often the opposing party will not know that the report relied upon is not the first to have been obtained. The first report is generally regarded as privileged and therefore not disclosed. This practice obviously makes contested cases more likely and is therefore frowned upon by the judiciary.

The contrary view is that it is the claimant’s case and the burden is on him to prove the injuries and losses which he has suffered. If he genuinely believes that he has suffered a particular injury as a result of the defendant’s negligence and he can find an expert to support this, why should he be prevented from relying upon this evidence simply because a previous expert gave a contrary opinion?

In the recent case of Tubb v J D Wetherspoon, the defendant was aware that the medical report relied upon by the claimant was not the first which had been obtained regarding his complaint of “whole body pain”. This was because the solicitors had followed the personal injury pre-action protocol by nominating 3 orthopaedic surgeons as potential experts before obtaining a report from one of them. When proceedings were served some time later, the author of the accompanying medical report was not one of the 3 experts who had been nominated. It was therefore clear that a report had previously been obtained from one of the nominated experts and that the report served with the proceedings was a second opinion. The claimant accepted that this is what had happened.

An expert report obtained for the purposes of litigation is privileged and the court cannot require a party to disclose this. However, the CPRprovides that no party may put in evidence an expert’s report without the court’s permission. Therefore, at the case management hearing, the defendant contended that the permission for the claimant to rely upon the favourable report should be conditional upon the claimant also disclosing the previously obtained unfavourable report. The court agreed and made an order in these terms.

The claimant was then left with a choice of either having to disclose the privileged unfavourable report as well as the report relied upon, or not being able to rely upon any expert evidence to support his claim. He therefore appealed.

The Court of Appeal upheld the original decision on the grounds that “expert shopping” was undesirable and the court should use its power to prevent it.
This decision only applies where the previous report was prepared for the court, although it is not now relied upon. It may now become more common for experts to be instructed first in an advisory capacity to check whether they are able to support the case, before they are asked to prepare a formal report. However, experts need to be aware of the possibility that this decision could force disclosure of reports which they prepared some time ago (even fairly basic preliminary ones) in cases which they were unable to support and about which they heard nothing further.
Email: ali.malsher@anthonygold.co.uk Tel: 0207 940 4000