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Recovery of NHS Costs for Treating Diseases - Jenny Dickson, Morton Fraser LLP

20/08/18. The NHS has been able to recover the costs of treating those who have suffered an injury due to the fault of another for some time. Part 3 of the Health and Social Care (Community Health and Standards) Act 2003 allows compensation payments for treatment in hospital or ambulance services. Illnesses are, however, excluded from this.

There have been previous attempts to extend the law to allow for recovery of the costs of treating industrial illnesses in different parts of the UK. A new proposal by Stuart McMillan MSP in his consultation for a proposed Recovery of Medical Costs for Industrial Disease (Scotland) Bill attempts again to do so in Scotland.

Previous proposals

In January 2015 Stuart McMillan launched a consultation on a Recovery of Medical Costs for Asbestos Diseases (Scotland) Bill. This sought to allow recovery of NHS charges associated with the care and treatment of victims of asbestos related disease. It also proposed to specifically extend liability insurance cover to cover these charges.

This was however not proceeded with. A large part of the reason for this is likely to have been the Supreme Court's decision in February 2015 that a bill with the same overall purpose passed by the Welsh Assembly, The Recovery of Medical Costs for Asbestos Diseases (Wales) Bill, was outwith legislative competence.

There were a couple of reason for the Supreme Court's decision. The first was that the majority of judges thought that the charges which it proposed to recover were outwith the scope of the Welsh Assembly's powers. The second was the attempt to extend the scope of compensators' insurers' liability premiums to include payment of the charges was found to be in breach of the rights of insurers under Article 1 Protocol 1 of the European Convention on Human Rights.

The latest proposal

The latest proposal by Stuart McMillan initially appears wider than the 2015 proposal because it is not limited to asbestos related conditions. Instead it proposes to cover the wide range of industrial diseases listed in Appendix 1 of the Department for Work and Pensions Guidance, Industrial Injuries Disablement Benefits: Technical Guidance. This could include, for example, asthma or skin conditions from working with chemicals.

However a couple of changes, made following consideration of the Supreme Court judgment on the Welsh Bill, limit its scope compared with the 2015 proposal. First, the previous proposal to extend the scope of insurance cover is removed. Secondly, it will not have retrospective effect so the ability to recover charges will only apply where exposure to the hazard which caused the illness occurred after the date on which a bill is brought into force.

Comments on the latest proposal

The latest proposal has some way to go before a bill can actually be introduced before the Scottish Parliament. The consultation closed on 22 June 2018. After the responses have been analysed, the next step will be for Stuart McMillan to lodge a final proposal with the Scottish Parliament and he will only be able to introduce a bill if this gets enough support.

Many people are likely to be in favour of a bill. As currently proposed, it would have no impact on those suffering illness but allows the NHS to get some money back. This is clearly beneficial to the NHS. However the impact it will have in practice is not entirely clear.

Because a bill will not be retrospective it will only apply to costs incurred for treatment of an illness that was caused by exposure, where that exposure occurred after the bill came into force. With many industrial diseases, there is a long period between the exposure and the illness manifesting itself. This means that it may take some time before any real impact is felt, if legislation is enacted.

There might also be some complications in determining whether treatments costs are recoverable. It is often difficult to demonstrate that particular illnesses or diseases are directly caused by exposure to a hazardous substance as opposed to some other reason.

One would hope that may industrial diseases currently covered by a bill will be in decline as employers become more aware of the effects on employees and preventative measures which can be taken to reduce the risk of illness. Although, looking ahead, we can’t tell what the next industrial disease could be. A bill could safeguard the NHS from footing the cost for that unknown.

We will just have to wait and see the terms of any bill that may be introduced and whether it will deliver what it’s intended to when put into practice.

Jenny Dickson
Partner & Solicitor Advocate
Morton Fraser LLP

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