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Recovery of Medical Costs for Asbestos Diseases (Scotland) Bill

A consultation on new legislation to allow the medical costs for treating the victims of asbestos-related diseases to be reclaimed has begun in Scotland.  Backbencher Stuart McMillan, an SNP MSP has proposed a Member’s Bill which would require compensators to repay, to the Scottish Government, the cost of the NHS charges relating to the care and treatment of victims of asbestos-related diseases This money would then be repaid by the State to the health board which provided the treatment. 

Background

The current position across the UK is that compensators are required to repay to the State the cost to the NHS of providing treatment to those who sustain injury in accidents.  The State then distributes the money to the health trust or board which provided the treatment.  This was initially achieved by virtue of the Road Traffic (NHS Charges) Act 1999 which made the cost of treatment to victims of road traffic accident recoverable.  The Health and Social Care (Community Health and Standards) Act 2003 extended this to cover victims of all types of injury from January 2007.  The law has never been extended to cover industrial diseases and therefore victims of asbestos-related disease.

The Welsh Bill

In early 2012 Mark Antoniw AM introduced a Member’s Bill in the Welsh Assembly to deal specifically with the recovery of NHS costs for asbestos related diseases.  The Recovery of Medical Costs for Asbestos Diseases (Wales) Bill is intended to enable the Welsh government to recover from a compensator certain costs incurred by the NHS in Wales in providing treatment to the victims of asbestos related disease.  It is estimated by the supporters of the scheme that it could raise between £1 million and £2 million per year for the public purse in Wales, although those figures are disputed by the ABI who suggest that the figure would be significantly lower. 

The Bill was due to pass its final stages but a vote on it was postponed at the last minute due to issues around its legality and whether the Welsh Assembly has the power to introduce it. The insurance industry and others argue that because the Welsh Assembly does not have tax raising powers and given the fact the legislation does not specify that the money raised must be spent on the NHS specifically then, in effect, what the Bill would do would be to levy a tax on compensators. There are also arguments that the Bill may breach the European Convention of Human Rights. 

The Bill is subject to a Reference to the Supreme Court by the Counsel General for Wales (a process similar to judicial review where the Supreme Court rules on whether the Act is within the competence of the Welsh Assembly).  The hearing took place in May 2014 and judgment was due to be handed down in December but this was postponed to allow the Supreme Court to consider further written statements from the parties.

It is worthy of note that in Scotland the administration of NHS treatment is a devolved matter and therefore we do not anticipate the same challenge to arise with regard to the jurisdiction of the Scottish Parliament but it may still be challenged in relation to another issue or competency such as the ECHR route.

Implications

With about 5000 workers dying in the UK every year from previous exposure to asbestos the significance of the medical costs involved should not be underestimated.  Research from Andrew Watterson et al in 2006 suggested that in 2000, 120 diagnosed, recorded and treated cases of asbestos-related disease occurred in Scotland. Of those, 100 were mesothelioma cases, costing the Scottish NHS an estimated £942,038.

Clydeside Action on Asbestos who put the Bill forward with Stuart McMillan estimate that NHS Scotland now spends over £20 million a year on diagnosing and treating people with the effects of asbestos exposure and specifically £60,000 per patient for diagnosing and treating mesothelioma.  The effects of historic exposures to asbestos are showing no signs of slowing as yet and in fact the number of people being diagnosed with mesothelioma is increasing.  The most recent figures from the Health and Safety Executive predict that UK cases of mesothelioma will not now start to decline until 2020.

Disease Scotland Article

Next steps

The formal consultation process has begun and views are being sought from the whole of the Scottish community.  Mr McMillan has indicated he is keen to hear views from the insurance industry on a number of questions attached to the Bill.

The consultation runs to 30 March 2015 when the responses will be collated, analysed and a summary lodged in Parliament.  The final proposal then needs to secure the support of at least 18 other members from three or more political parties or groups.  Additionally, the Scottish Government need to confirm they do not intend to legislate in this area.  Given that the SNP hold 69 of the 129 seats in the Scottish Parliament and a Labour member of the Welsh Assembly introduced a similar Bill in Wales it seems likely that support will be secured.  A Member’s Bill could then be introduced which would follow the normal 3-stage scrutiny process during which it may be amended or rejected outright. If the Bill is passed at end of the process it then becomes an Act of the Scottish Parliament, subject to any challenge pursued in the meantime.  The average time for Members’ Bills to pass all three stages is 154 days but timescales can vary widely depending on the nature of the Bill.

DWF recognises the importance of responding in details to this proposal and we will be inviting comments from across our client base in order to submit an appropriate response.  For further information on how to get involved please contact us. We will also be collaborating on the response to be submitted by FOIL.

Contact

For further information please contact Caroline Coyle, Associate, Professional Support Lawyer, on +44 (0)7712 355 907.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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