Faculty of Advocates Remarks that the Scottish Bill, Devised to Recover the NHS’ Costs of Treating Industrial Disease Victims, Lacks ‘Incentivising Effect’

Avid readers of BC Disease News will be aware of the fact that we have been closely following the progress of the Liability for NHS Charges (Treatment of Industrial Disease) Scotland Bill through the devolved Scottish Parliament, since the beginning of this year.

The Member’s Bill, which was first introduced on 9 March 2020, seeks to amend s.150 of the Health and Social Care (Community Health and Standards) Act 2003.

As presently drafted, the 2003 Act expressly states that compensating parties are not liable for NHS expenditure on treatment for patients who have suffered diseases.

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Enactment of the Bill would extend liability beyond ‘injuries’ to ‘industrial diseases’ (e.g. asbestos-related conditions, skin conditions, respiratory conditions, deafness, and asthma), thereby allowing the state to recover additionally incurred charges.

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Most recently, in edition 311 (here), we reported that the Health and Sport Committee had made a public ‘call for views’ to assist with the 1st stage of legislative scrutiny, which it had been appointed to conduct.

On 22 September (8-days before the ‘call’ ends), the Faculty of Advocates submitted its Responses to the substance and practical effect of the Bill, which we present below.[i]

Question 1: How with the Bill lead to improved working conditions and health and safety practices in workplaces?

With regards to the 1st question, the Faculty stated that improved working conditions and health and safety practices were already being incentivised by awards of damages for personal injury and criminal sanctions for breaches of statutory duty, under the Health and Safety at Work Act 1974. As a result, it had ‘no reason to believe that the Bill will have any additional incentivising effect’.

Question 2: How will the Bill help prevent industrial diseases in the future?

On the 2nd question, it was the Faculty’s view that, since the availability of civil and criminal proceedings is intended (at least in part) to prevent employees from developing or contracting industrial diseases, it could not necessarily be expected that the Bill would lead to more effective pursuance of this objective.

Question 3(i): What impact will the Bill have on individuals?

Having assumed that this question was targeting ‘employees’, the Faculty considered that it had already covered the Bill’s impact in the 1st and 2nd questions , namely that there would foreseeably be no additional benefit beyond what may be achieved through civil litigation or criminal prosecution.

Question 3(ii): What impact will the Bill have on NHS boards?

Though not in a position to quantify the exact impact of the Bill on the NHS (predominantly money-related), the Faculty accepts that it would relieve some of the pressures that the health service take on when it takes care of victims with a range of industrial diseases.

Question 3(iii): What impact will the Bill have on workplaces?

As an extension of question 3(i), the Faculty’s answer to this question was simply its response to question 3(i).

Question 3(iv): What impact will the Bill have on the insurance industry?

Questions 3(ii) and 3(iv) represent a tug of war and as the obvious loser of this game (initiated by the new legislation), the Faculty acknowledged that the financial burden on insurance companies would rise in direct correlation with the NHS’ burden falling. The extent to which the fiscal burden of each party would shift is, however, an unknown quantity in the absence of a full impact assessment.

 

[i] ‘Faculty of Advocates warns industrial disease bill “unlikely to improve safety”’ (23 September 2020 Scottish Legal News) <https://www.scottishlegal.com/article/faculty-of-advocates-warns-industrial-disease-bill-unlikely-to-improve-safety> accessed 28 September 2020.