BOXY the champion 5 year old bull, after a 17-month wrangle over a bungled test for bovine TB, was formally declared free of the disease in August 2011. The result vindicates the Jackson family's decision to fight a slaughter order issued in April 2010 by the Leeds division of Animal Health, the veterinary service of the Department for Environment Food & Rural Affairs. The Jacksons successfully challenged the order on the grounds that the blood test was not carried out properly. Defra has spent a lot of taxpayers' money defending the mistake and could be paying out considerably more. In April this year, a High Court judge ruled that Defra had broken its own rules by mixing two blood samples and its diagnosis was invalid.
Defra argued in court that its breach of procedure was trivial and irrelevant. And it continued to hope and believe it would be proved right in the long run. But in June the bull passed a repeat of the skin test (which he had initially passed). Despite this the vets insisted on another blood test as well as a second skin test. The Jacksons objected for several reasons - not least because it meant trusting Defra to be objective in the privacy of its own laboratories. The results of the latest skin test was negative. "I am over the moon," said Mr Jackson. "The irony is that a second blood test is all I asked for in the first place."
He wanted a second opinion on the British Blonde bull because of the value of the animal and because he knew there had been some difficulty getting blood samples from it.
The wrangle has meant that Boxster has been out of action for nearly 18 months of the prime of his life. The cost of the sons and daughters he has not produced is one consequence of Defra's mistake.
Dermott Thomas, a spokesman for the Ipswich solicitors who handled the case, Barker Gotelee, said that an agreement had been reached with Defra on legal costs. Compensation was a possibility to be discussed.
Defra has confirmed: "This bull can be regarded as officially TB-free." Its statement defended its TB policy and made no apology for its behaviour in this case. But it said it would settle the Jacksons' legal costs within 10 days.
One effect of the case has been to make it more difficult for Defra to perform blood tests. It emerged in evidence that technicians often used two partial blood samples to make up one full one. But that is a breach of guidelines and the judge ruled that farmers were entitled to expect best practice.
We will be requesting full details of the costs to be paid out in this case.
14 Sep 2011, 6:30 PM
A Freedom of Information request response from Defra (dated 14/9/11 ref RFI 4204) has revealed that the legal costs of the case paid by Defra (ie out of the public purse) were £133,000, which included a payment towards the animal owner's legal costs. It also stated that 'No compensation was paid for the animal' .
It is not known at this stage if the owners of Boxster will take further action against Defra regarding compensation for the time Boxster was out of action.
12 Sep 2011, 6:00 PM
The Judge did not accept their expert's argument and came to the conclusion that a test not taken according to the rules is invalid. This sets a legal precedent. Any test not taken according to the rules can now be challenged....
Any farmer who has a problem with bTB tests that were not done according to protocol can scuttle off to court and use Boxster's precendent...Of course a farmer can have a sound legal challenge with a such a test. DEFRA were so desperate not to set a precedent..... instead they have created a dirty great big one.
12 Sep 2011, 10:07 AM
The latest article from Yorkshire Post on 12/9/11 sets out the questions asked and answers from Defra as reproduced above.
It goes on the report on how the owners refused to give up - reproduced below.
"BOXY the bull’s owner’s daughter, Kate McNeil, got deeply involved in the research which forced Defra to give the bull a second set of TB tests, leading to an all-clear.
She said the Defra responses were “a classic example of Defra appearing to answer the question while actually avoiding the point”.
She is sceptical of the department’s claim of 97 per cent accuracy in bovine TB testing – and the campaign Rethink BTB says it is “seriously misleading”. But in view of Defra insisting the gamma interferon (blood) test is particularly precise, Kate asks: “Shouldn’t this be used with the skin test in high-incidence areas across England and Wales?”
The Defra answer to Question Two, about how Boxster got a false positive in the first place, left Kate puzzled over its meaning.
“Boxster has passed not only a blood test but three skin tests,” she commented. “Are they suggesting his immune response is hiding a truly infected animal?”
She was particularly interested in the response to our question about why farmers could not be allowed to pay for a second opinion. All her father ever wanted was a repeat of the flawed blood test on Boxster. But it cost him £120,000 in legal fees to get it.
Defra returns to stressing the accuracy of the test, implying it was just a fluke that it was proved wrong in the one case it has been repeated on the same animal.
A court declared the first test invalid because two blood samples were mixed. But Defra does not even concede, as the judge advised, that farmers are entitled to expect best possible practice.
Kate commented: ““They say a retest will only be agreed if failure to follow field instructions would be likely to affect the validity of the test result, based on their expert scientific advice.
“In the Boxster case, three Defra experts all stated, in several report papers, that his blood result would not have been affected by their handling of the samples. Our expert contradicted their opinions and has now been proved correct. But they appear to be saying farmers will still not have a legal challenge if they decide they are right, like they did in our case.”
11 Sep 2011, 6:36 PM
Email from PT dated 11/9/11.
Point 2. Boxster was a false positive in the first test. Why...could just be that DEFRA failed to follow their own guidlines when taking the blood....
Point 3 where they state that the blood test is 97% accurate is just false. They really need to be challenged on this. In 100 healthy animals the test will be negative in 97 of them and 3 false positives. That is what 97% specificity is...
If you went to a country or an area where there is no bovine TB, the positive result would be false in every case and hence would have 0% accuracy. As I gave in my witness statement with the Boxster case, if all the animals in the herd are healthy you have an expectation of having some positives in the blood test. They should not be allowed to get away with this misinformation.....In the case of Boxster herd with one confirmed skin test positive, the prevalence is about 1%, and the accuracy of a positive test is 20%...a long long long way from the 97% DEFRA claims...
Also they say "In future, if gamma interferon test blood samples have not been collected in full accordance with field guidance notes, a retest will only be agreed if the failure to follow field instructions would be likely to affect the validity of the test result, based on our expert scientific advice"
Their "expert" in the Boxter case said in court that the failure to follow instructions did not affect the validity of Boxter's result. But the judge threw out that argument. So they CANNOT say that. What the Boxster case says that if there is a failure to follow the guidance notes then the farmer can ask for a retest regardless of the result (and the opinion of DEFRA's expert). This is the precedent that Boxters case sets....and DEFRA would be well advised to listen to what the Judge said.
DEFRA truly have their head in the sand and suffer from arrogance in their misconcieved belief that their testing system is perfect....
They need to be challenged everywhere on this...
11 Sep 2011, 6:33 PM
The questions posed to Defra by the Yorkshire Post and the responses from Defra. (email from AHVLA dated 7/9/11).
Please find Hallmark Boxster questions and answers for you, as promised.
Question 1) In view of the Hallmark Boxster case, will there be any attempt to check the level of misdiagnosis arising from the blood test for bovine TB?
Defra's response No. We have complete confidence in our bovine TB testing regime, which is internationally respected and is helping to stop the spread of this terrible disease. All research and field evidence shows that the gamma interferon test has a very high degree of accuracy and is effective at disclosing infected animals missed by the skin test. The gamma interferon test has been fully validated in GB conditions and is used across the world.
Question 2) Does Defra now accept that the first blood test on Boxster gave a false positive and what steps can be taken to avoid a repeat of that mistake?
Defra's response It’s difficult to say exactly what happened in this case. Generally most cattle if tested twice would give the same test results consistently over time. However, there are a number of factors that can lead to different test results at different times including; no diagnostic test being 100% accurate, the time elapsed between tests, and the complex nature of animals’ immune responses to the TB bacteria, which are not static but evolve over time.
Question 3) In view of the fact that misdiagnosis is clearly possible, why cannot farmers be allowed to pay for their own tests when there is reason to doubt a result from Animal Health and/or the animal is especially valuable?
Defra's response The interferon-gamma test has a very high degree of accuracy and about 97% of cattle that test positive to this test will be true positives.
In future, if gamma interferon test blood samples have not been collected in full accordance with field guidance notes, a retest will only be agreed if the failure to follow field instructions would be likely to affect the validity of the test result, based on our expert scientific advice.
When cattle test positive to an authorised and validated test it is our duty under domestic and European law to remove the animals so that they don’t infect others. Given the seriousness of the bovine TB problem it is important that controls are applied consistently and with rigour.
Whilst most cattle would show the same repeat results if retested within optimal time frames, as stated above, there are a number of factors that can lead to differing results.
Question 4) In view of the fact that the blood test was considered an essential decider in this case, why can cattle be sold out of Wales on the basis of a single skin test? Is this the case in English hotspots too?
Defra's response In high bovine TB incidence areas in England and Wales, cattle from OTF (officially TB free) herds must test negative to a pre-movement test before moving to a low incidence area.
The gamma interferon test is used alongside the skin test in specific circumstances to improve the sensitivity of the testing regime and identify infected animals more quickly. In this particular case, the herd was located in a low TB incidence area and bovine TB had been confirmed in an animal from it. In such herds, the gamma interferon test is used to ensure as far as possible that no cases of infection are missed, and so to reduce the risk of bovine TB getting a firm foothold in new parts of the country.
Question 5) Is it correct that cattle from herds under suspicion can be moved after a quarantine followed by two clear skin tests? If so, why did nobody advise the Jackson family they could have used this option to sell offspring of Hallmark Boxster?
The options for moving cattle from restricted herds include via an approved bTB isolation unit. These allow separation of groups of cattle for testing purposes. Providing all required tests are passed this can allow isolated groups to regain Officially TB Free status (and be released from restrictions) at different times from the rest of the herd. Approval conditions in low incidence areas are designed to prevent any risk of bTB spread between groups and include wildlife-proof housing and separate equipment/staffing arrangements.
If keepers request approval of any of the bTB approved units, AHVLA will carry out an inspection and providing conditions are met, the unit may be approved.
Question 6) Is it correct that farmers could have the option of vaccinating their cattle against bovine TB if the government was prepared to give up exports of live cattle to the rest of the EU?
Defra's response Not at the moment because vaccinating cattle against bovine TB is banned under EU and UK law and in any case, there is as yet no licensed cattle vaccine available against bovine TB.
In the longer term, Defra’s funding of research and development work will support the possibility of the licensing of a vaccine for use in cattle across Europe. But before it can be deployed in the field, EU law will need to be changed and this may be years away.
Cattle vaccination has the potential to make a significant contribution to the control and eventual eradication of bovine TB. However, vaccination cannot guarantee that all cattle will be fully protected against bTB and is therefore unlikely ever to be suitable for use as a sole eradication strategy.
Cattle vaccines are currently prohibited under EU legislation as the lead candidates are based on BCG, which can interfere with the tuberculin skin test. Some vaccinated cattle could therefore react positively to tuberculin as if infected by bTB, and herds could not be declared Officially TB Free (OTF). We are working with the EU to lift the current ban on bTB vaccination of cattle and allow a DIVA test (to differentiate infected from vaccinated animals) to be used as a trade test.
11 Sep 2011, 5:29 PM
Good blog posting )reproduced below with consent) at www.rethinkbtb.org/blog.html#home
Defra out for the county
If you wanted a fight, would you take on a large bull, a determined farmer and an inquisitive journalist all at once?
Defra did. (see “Bull beats Defra” below). Now the Yorkshire Post has uncovered a further bout of either incompetence or dissembling.
All Defra publications define the specificity of BTB tests as the number of correct results compared to the number of cattle tested. In the case of the interferon gamma or blood test used on Boxster (the large bull in our story) it is 95 to 97%. That means of 100 “uninfected” animals tested, between 95 and 97 will be correctly identified as uninfected. The remaining 3 to 5 will be incorrectly condemned as “false reactors”.
Cornered by Chris Benfield (the inquisitive journalist) and Ken Jackson (the determined farmer) Defra have claimed that the errors affect only 3 in every 100 "reactors", rather than in 100 cattle tested.
3 in every 100 reactors would be a much smaller error than 3 in 100 cattle tested.
On average in England, at present levels of BTB, they would have to test about 20,000 cattle to find 100 reactors.
3 errors in those 100 reactors found among 20,000 tested?
Or 3 in every 100 tested (which is 600 in the 20,000 tested)?
The truth is 3 in every 100 tested, which is 600 cattle falsely condemned. Defra should read their own publications before holding forth on the accuracy of their tests.
But then they should have followed their own test protocol in the first place, or admitted their original test was done incorrectly and retested without the fuss.
Incidentally, Professor Torgerson, who first showed Rethink the implications of Defra’s specificity figures, uses a comparison of no less than three interferon gamma tests on each animal in his research. But he needs accurate results.
Interesting report from the Yorkshire Post who have been following the Boxster case. Its Country Week (http://www.yorkshirepost.co.uk:80/news/country-view/farming/country_week_defra_learns_nothing_from_its_expensive_mistake_over_tb_1_3134241) has reported on the responses from the Department for Environment Food and Rural Affairs (Defra) to questions raised by the case and put to its Animal Health and Veterinary Laboratories Agency by the Yorkshire Post, on behalf of the bull’s owners, Ken and Anita Jackson of Stubbs Walden, near Doncaster. The Department effectively says its confidence in its test procedures is unshaken.
However the Jackson family are not satisfied with the answers, having spent thousands of pounds fighting to prove a mistake in the procedure which said their British Blonde bull had the disease.
And Rethink Bovine TB, a campaign against Government policy, says Defra continues to make “seriously misleading” statements about the accuracy of its tests.
In relation to the blood test which went wrong in Boxster’s case, Defra told the Yorkshire Post: “The interferon-gamma test has a very high degree of accuracy and about 97 percent of cattle that test positive will be true positives.”
Michael Ritchie, a spokesman for Rethink BTB, said yesterday: “According to Defra publications, the specificity of the interferon gamma test is 95 to 97 percent. The way it defines specificity is that it is a measure of the proportion of false positives for a given number of animals tested, not for a given number of positive test results.
“Defra are seriously misleading farmers and taxpayers by stating that ‘about 97 per cent of cattle that test positive to this test will be true positives’. The truth, on its own evidence, is that for every 100 cattle tested, between three and five will be false positives, regardless of the number of true positives.
“This lack of accuracy is resulting in a large number of cattle being condemned in error.”
As reported last month in the Yorkshire Post, Boxster was officially given the all-clear after spending nearly 18 months in quarantine. He was finally freed from his pen in August and is now back amongst his cows at Forlorn Hope Farm. But the Jackson family are still looking for compensation.
20 Aug 2011, 11:21 AM
According to the Yorkshire Post (www.yorkshirepost.co.uk/news/country-view/farming/battle_over_prize_bull_boxy_cost_133_000_1_3698454#.Tk95efd9PJU.twitter) the Department for Environment and Rural Affairs (Defra) has said its total bill for defending the 17-month case to determine Boxy’s fate after a bungled test for bovine TB came to a massive £133,000.
Defra said the bill comprises Mr Jackson’s legal costs and the fees of its counsel. But last night Mr Jackson said: “My legal costs alone have come to £114,000, Defra have offered me £90,000 and I will have to take advice on this.
“I would not like to think how much this has cost the taxpayer overall – it has been a huge waste of public money.”
And what if the Jacksons choose to take legal action against Defra tfor some form of compensation for the 18 months Boxster was held in isolation (at the prime f his life) and not able to sire or provide semen?
17 Aug 2011, 9:36 AM
Email from PT 17/8/11 The judgement with BOXSTER essentially has set the precedent that any TB test that is not done according to the book can be challenged. So if any farmer has any evidence that a TB test on a "positive" animal was not done exactly right then they should challenge it. This means that farmers should ensure that every animal undertaking a skin test should have their skin measured by callipers every time. This vet got caught, but I know what he did is widespread practice. Vets are going to have to be very careful and work very slowly and methodically.... or they run the risk of a (positive) test being disregarded or even worse!