Scottish Bill introduced to enable recovery of NHS charges in industrial disease claims
On 9 March 2020, Stuart McMillan MSP introduced the Liability for NHS Charges (Treatment of Industrial Disease) Scotland Bill (the Bill) to the Scottish Parliament, to enable the recovery of those making compensation payments to people with an industrial disease or those contributions towards the costs incurred by the NHS in Scotland in treating those people.
For many years there have been legal mechanisms in place which enable the state to recover compensations in cases where injuries are treated by the NHS. To date, however, there does not exist scope for recovery of such costs incurred by the state when the individual suffers from an industrial disease.
In seeking to achieve a greater level of ‘fiscal fairness’, a draft proposal was lodged by the Scottish Government on 28 March 2018 seeking to enable Scottish Ministers to recover, from the party responsible for causing an industrial disease, certain costs incurred by the NHS in providing care and treatment to those suffering from that disease. The consultation, to which Kennedys provided a response, ran from 29 March to 22 June 2018.
On 1 February 2019, the final proposal was lodged, accompanied by a summary of the consultation responses and on 9 March 2020, the Bill was introduced to the Scottish Parliament.
This Bill proposes a scheme that would cover all industrial diseases whilst still excluding all other diseases and the costs incurred by the NHS in providing care and treatment to those suffering from those conditions. Reading the Bill in its current guise, a disease can be defined as industrial if it arises out of a person’s employment whether that is the injured person’s own employment, or the employment of someone else associated with that person, so long as there is a causal link between the disease and the associated person’s employment.
Motivations behind Bill
Taking into account Scotland’s rich industrial history, there is the perception that victims of industrial diseases should be put on an equal footing with those victims of road traffic accidents and other injuries given that there exists a common law duty of care towards the victim by the negligent party which should not be restricted to physical injury only but also extended to disease. There also exists the valid query - why should the tax payer bear the full financial burden for the negligence of others which has caused the industrial disease to the individual?
It is also hoped that a financial penalty may serve as a sufficient incentive to employers to improve health and safety practices across the country and thus reduce the incidence of industrial disease.
How the Bill would work in practice
The Bill would only apply to industrial diseases resulting from exposure to an occupational hazard if the exposure occurred after the commencement date of the Bill.
Significantly, (as under the Scotland Act 1998) the Bill would not include any such provision about insurance given insurance is a ‘reserved matter’. Subsequently, any liability under the Bill would lie with the negligent party directly, not their insurer.
Requirement for such a scheme?
It is a concern of ours whether the revenue obtained from the proposed scheme will be disproportionate to the running of the scheme itself.
Of the 9,443 personal injury cases raised in the Scottish courts in 2017-2018, 935 related to those caused other than by RTA and other accidents, medical negligence or asbestos disease. The other causes were primarily industrial diseases and injuries such as deafness, vibration white finger, silicosis and a number of industrial cancers. Given these numbers, it is reasonable to ponder what revenue the scheme would raise in reality for the NHS.
Whilst many of the motivations and objectives behind the proposed Bill are both admirable and well founded in seeking to remedy a gap in the compensation recovery process in Scotland, there must also be considerable thought given as to how exactly the scheme will work in practice and the cost / benefit analysis of implementing such a measure.
The Bill is currently at Stage 1 of the legislative process and so if it is to be enacted it is likely to be some way off given the current climate and upcoming summer recess. The earliest this can realistically be expected to pass would be this coming autumn although it could venture well into next year.
What is clear is that there are considerable reservations from within both the public and private sector as to how the scheme would operate in practice and its wider implications from a financial and operational perspective. There is likely to be further debate and reviews of the Bill before it can conceivably be calcified into legislation.
Related item: Occupational Disease Brief: latest decisions March 2020