Proposed New Law which will Recover Millions for NHS Scotland (Active Campaign)
The bill is backed by Action on Asbestos and is being taken forward as a member’s bill at Holyrood by MSP Stuart McMillan. The recovery of medical costs will allow the NHS to claw back the enormous expenditure associated with treating people who contracted industrial diseases such as mesothelioma, which is caused by exposure to asbestos.
Action on Asbestos estimate that over 20 million pounds a year are spent by NHS Scotland diagnosing and treating people suffering from the horrendous effects of asbestos exposure. This bill will enable the NHS to recoup those costs from insurance companies who have already settled civil claims with victims. The costs of treatment will be calculated from a patient’s initial diagnosis.
There is currently a provision in Scots law for the NHS to claim from insurers the costs of treating people involved in accidents but no recovery system exists for those who have contracted industrial diseases. The fact that a recovery system is already in place for accidents means the bill’s introduction should be achieved with little difficulty.
Action on Asbestos anticipates the bill will meet with very strong resistance from the Association of British Insurers, but we firmly believe that those who cause industrial disease should compensate our National Health Service for the strain that asbestos has placed on its finite resources.
Phyllis Craig MBE, Director of Action on Asbestos, said:
“Recovering the costs of treatments for those who have sustained an Industrial Injury is an issue that we have been raising for some time.
“The costs to the NHS of treating people who have had industrial injuries or developed industrial injuries should be met by the insurers as part of the civil compensation process.
“Of course, a consultation on the recovery of NHS costs will stimulate discussion and debate and this is to be welcomed. My hope is that the Bill will ultimately recover all costs of treatments provided by the NHS, as this will mean that it will be the liability of insurers to meet the costs of diagnosing, managing and treating those who have suffered an injury or illness can be enshrined in law.”
Stuart McMillan MSP:
“For many years the NHS has been able to recover the costs of injuries caused by road traffic accidents – I would like to see that principle extended to industrial diseases. The NHS in Scotland should not be disadvantaged by paying the financial price for the care and treatment of individuals whose injuries have been caused by a person or organisation’s negligence.
“I believe that the NHS in Scotland should also be fairly compensated when it treats someone who suffers from an industrial disease.
“In my own constituency of Greenock and Inverclyde there is a dreadful legacy of industrial disease, particularly asbestos-related conditions. This legislation would allow the NHS in Scotland to recover much-needed cash, as millions are spent each year on treating industrial diseases which people have contracted through poor working practices and conditions.
“At the very least this legislation would drive up health and safety at work standards across Scotland.”
Recovery of NHS costs of treatment for those injured in accidents caused by the negligence of others has been a recognised concept in Scotland since the Road Traffic (NHS Charges) Act 1999.
It is estimated that over £20million per year is spent by NHS Scotland diagnosing and treating people suffering from the horrendous effects of asbestos exposure. This bill will allow the NHS to recoup some of these costs and could be used to help future patients.
Gary Smith , Director of CAA and GMB Scotland Secretary:
“It is time for the insurance industry to meet their obligations. The costs of providing treatment would not exist if there had not been negligence on the part of the employer. I know that the GMB and wider Civic Scotland will use this consultation to give the proposed law their full support.”
Recovery of NHS costs of treatment for those injured in accidents caused by the negligence of others has been a recognised concept in Scotland since the Road Traffic (NHS Charges) Act 1999. Initially, the scheme applied only to care needs arising from road traffic accidents, however; this was extended in 2003 with the Health and Social Care (Community Health and Standards) Act 2003 to include costs arising out of all types and causes of injury. Section 150 of that Act, however, restricts recovery to costs related treatment of an injury and not a disease.
90% of all asbestos-related claims are met by insurance companies. The remaining 10% will be met by self-insured or uninsured businesses still in operation and local authorities. It should be noted that the latter often have insurance in place for periods of time but may on occasion be required to meet the compensation from their own funds. These figures are supplied by Thompsons Solicitors who currently hold approximately 80% of the asbestos claims in Scotland.
Based on figures provided by healthcare professionals involved in the treatment of these asbestos diseases we estimate that the average costs for each of the above-noted conditions would be as follows:
Based on the above the potential input being recovered for providing basic treatment/care for an individual with either mesothelioma or asbestos-related lung cancer is underestimated at £54,180. The total underestimated figure for settled cases in 2012 is £3,955,140.
For patients with asbestosis or pleural thickening, there is a potential to recover an underestimated £20,000 per individual. The total underestimated figure for settled cases in 2012 was £5,480,000.
Cost of Diagnosis
The above figures do not include initial investigations. Where an asbestos condition is identified on chest x-ray the individual will be sent for further investigations incurring further costs. These costs would be associated with all asbestos conditions including Pleural Plaque as although there are no costs for treating Pleural Plaques there are initial costs post-diagnosis of this condition.
Based on our initial research, this suggests in total potential of over 20 million pounds being recouped back into the NHS each year.
We fully anticipate that our proposal will be met with strong resistance from the Association of British Insurers. We have detailed our estimation of the potential costs of this scheme. This must be considered in the light of the significant profits made by the main three insurers which for the tax year ending April 2012 were as undernoted:
Aviva £60 Million
RSA £427 million
Allianz £191 million
Zurich £642 million
Protect our children from asbestos in Scotland’s schools (Active Campaign)
We are calling for an end to the fear caused to parents, teachers and school staff because of asbestos in school buildings. The issue of whether asbestos should be removed or is safer left in situ appears to be dealt with differently depending on who occupies the building: Leaving it in place doesn’t seem to be an option and cost does not seem to be a problem if asbestos is found in Westminster, Buckingham Palace or Bute House, but when it comes to our schools it is deemed to be safe left where it is or too costly to remove.
Why schools? Why children?
Asbestos causes lung cancer and mesothelioma. The dose level required to contract mesothelioma is extremely small. Potential exposure to asbestos in schools is more likely because of the nature of schools. A National Audit Office report found asbestos was a “potentially dangerous issue” in most schools, and warned it could be disturbed by “unruly” pupils or teachers attaching work to walls.
Children are more vulnerable than adults and therefore have a significantly higher risk of developing mesothelioma. A five year old child that is exposed is five times more likely to contract mesothelioma than someone exposed to asbestos in their 30s. It is reported that between 200 and 300 people die each year from exposure to asbestos as school children.
It’s no longer good enough for those in power in Scotland to deflect answering this question by saying that the management of asbestos in schools is an issue which is governed by the HSE and as those powers are not devolved this somehow absolves decision makers here from their responsibility to protect our children. Is our conscience and responsibility to protect those most vulnerable a non-devolved issue too?
We want a coordinated approach throughout Scotland. We are calling for the Scottish government to bring together all duty holders and decision makers to tackle this issue head on. Progress on this issue in Scotland has been too slow for too long. It’s time for that to change:
The Recovery of Medical Costs for Asbestos Diseases (Scotland) Bill (Active Campaign)
Campaigners launch updated bill after cynical insurance bosses break promises to victims’ charity
15 January 2016
MSPs are being asked to throw their weight behind a new bill that will make the insurance industry pay back The Scottish NHS for the cost of treating people who have contracted any industrial illness or injury. The bill, being launched by West of Scotland MSP Stuart McMillan, will compel insurers who have had to pay civil compensation for the disease or injury to also meet the NHS costs of their treatment and care.
This updated bill has been launched following a disgraceful breach of trust by insurance bosses who used shabby tactics to derail a previous bill designed to refund the NHS over asbestos victims.
Stuart McMillan had proposed a bill last year that would seek to recover NHS costs for asbestos related conditions. Following the launch of a formal consultation, the Association of British Insurers requested a meeting to discuss if an agreement could be reached without the need for a new law being introduced. In an act of good faith Phyllis Craig MBE, Director of Clydeside Action on Asbestos and Stuart McMillian agreed to meet them. Phyllis explained:
We expected strong resistance from the insurance industry so when they approached us for a meeting we agreed to meet to discuss all possible options. The meeting went ahead with the ABI and we were specifically told that the insurance industry was supportive of the need for funds to be directed back into the Scottish NHS. The ABI actually asked that CAA and Stuart McMillan take the Bill off the Parliamentary table in order that they could present us with an acceptable proposal of funding in order to have an alternative solution to the Bill. We took them at their word and in the spirit of co-operation decided to work with them.
However once we took the Bill of the table the insurers broke their word and told us they were not willing to consider any alternative ways to achieve compensation for The Scottish NHS. We are now left with no option but to continue to support the need for a law to be passed to compel the insurers to meet their responsibilities. It would seem that the apparent interest of the insurers was simply a cynical attempt to derail the legislative process. It really is an underhand and disgraceful way for the insurers to treat our NHS and the men and women suffering terribly from industrial illness.
Jane Capaldi, 62, was diagnosed with mesothelioma in July 2015
When the consultant sat me down and explained that I had an illness caused by asbestos I was absolutely stunned. I couldn’t believe what the doctor was saying and I didn’t actually take in anything that I was told. It took me while to digest the fact that I had a terminal illness. Since then, there have been many nurses and doctors involved in my care and I am extremely grateful for this. Ensuring that there are enough staff and resources in the NHS to help people with an asbestos related disease is essential. I should never have been exposed to asbestos and I strongly believe that those who do expose people to asbestos must pay not only compensation to the victim, but also reimburse the NHS. This is very important to me because we need to ensure that the services and support continue to be in place and improved on for people living with an asbestos related condition.
Stuart McMillan MSP:
The one positive to come out of the year long delay is that it has given us time to think about the proposal in a wider context. Whilst recouping NHS costs for one group of people with an industrial illness would be a great step forward, we recognise there are significant costs to the NHS from treating other industrial illnesses and injuries. We need to ensure that the cost to the NHS of those who have been left with debilitating injuries through accidents at work along with individuals who have developed health problems as a result of their working environment are also recovered. This updated bill could potentially generate millions for the NHS. It was estimated last year that the cost to the NHS for investigating and treating people with an asbestos related condition was around £20 million. As this bill will cover all industrial injuries and illnesses, the potential gains to the NHS will be far in excess of this
Dr Alistair Dorward, Consultant Respiratory Physician, who has a long-standing interest in asbestos related diseases, stated:
There are very significant costs to the NHS for investigating, diagnosing and treating people who have work related injuries and illnesses. If negligent employers and insurers were liable to repay these costs to the NHS, then there would be the obvious financial gain for the NHS.
Mr Eddie Smith, who has asbestosis, is a member of the Forth Valley support group he commented:
This time last year, Charlie Bridgewater, who was also a member of the Forth Valley support group, was raising awareness of the need for insurers to meet their responsibilities. Charlie had mesothelioma and had nothing but praise for the doctors and nurses, and NHS staff who were caring for him. Although he was extremely ill, he wanted to speak out about the importance of insurers having to repay the NHS for the costs of his care, as it was their responsibility to do so. Charlie sadly died shortly after he gave his last interview and a year has now passed since Stuart McMillan’s first bill to recoup costs was raised. It seems to me that the insurers have delayed the process for long enough. We all need to come together to support the need for a law that would force the insurance industry to pay up
Laura Blane, solicitor advocate, and an expert in asbestos legal cases with Thompsons Solicitors :
The insurance industry have once again shown their complete lack of concern for people with an asbestos related disease. Whilst the estimated cost of investigating and treating people with an asbestos related condition in Scotland is substantial for the NHS, £20 million is a very small amount for the insurance industry. On a case by case basis, the additional costs to the insurers would have been insignificant. This will no longer be the case when Holyrood legislates for recovery of costs for all industrial illnesses and injuries.
Courts Reform (Scotland) Bill
Phyllis Craig, Chair of CAA, gave evidence on 22 April 2014 to the Justice Committee of the Scottish Parliament regarding CAA’s opposition to some of the proposed reforms contained within the Courts Reform (Scotland) Bill
The proposed Bill seeks, amongst other reforms, to remove all asbestos cases, where the value is deemed to be less than £ 150,000, from the Court of Session (Scotland’s Supreme Court) to Sheriff Courts. Advocate fees (Advocates are solicitors who have experience and skill in a particular area and appear in the highest courts) would not be recoverable under the proposed changes.
This would leave victims with a stark choice: Pay for your own Advocate’s fees or go to court without an experienced Advocate, and face the insurers, who would be able to retain Advocates regardless of the cost.
Given the complexities involved in industrial disease cases and the fundamental issues of the right to life, it is CAA’s contention that our clients must continue to have access to the highest courts i.e. the Supreme Court (Court of Session). We believe that adequate resources and proper legal representation are the best method of ensuring equality at arms.
Evidence to Scottish Parliament Justice Committee 22 April 2014
Courts Reform (Scotland) Bill: Scheduled evidence from:
Phyllis Craig MBE, Senior Welfare Rights Officer & Chair of Clydeside Action on Asbestos;
Sheriff Principal James Taylor;
Kay McCorquodale, Secretary, Review of Expenses and Funding of Civil Litigation in Scotland;
Rt Hon Lord Gill, Lord President of the Court of Session;
Roddy Flinn, Legal Secretary to the Lord President;
Eric McQueen, Chief Executive, Scottish Court Service;
Roseanna Cunningham, Minister for Community Safety and Legal Affairs, Cameron Stewart, Bill Team Leader, Hamish Goodall and Hazel Gibson, Policy Executives, Nicholas Duffy and Alastair Smith, Solicitors, Legal Directorate, Scottish Government.
We are extremely concerned that the insurance industry will continue to throw its considerable resources to defend any and all asbestos related claims as it so powerfully demonstrated during its exhaustive legal battle with the Scottish Government over the introduction of the Damages (Scotland) Act 2011.
The insurance industry acted swiftly to challenge The Damages (Scotland) Act and had asked the courts to consider that their “Human Rights” had been breached. For the widows and widowers of those who have succumbed to fatal asbestos related conditions this was viewed as a sick irony. They wish the insurers would act as quickly to compensate the victims of asbestos.
It was however a clear indication of the industry’s intention to vigorously challenge, and expend any amount of resources, when defending asbestos related claims: Resources which are unavailable to the victims. The courts must ensure equality at arms and we believe this can only be achieved if the pursuer has access to the best and most experienced Counsel.
We remain concerned that the transfer of asbestos related claims to the Sheriff Court will disadvantage the Pursuer unless the fees are recoverable as we have no hesitation in believing that the insurers will instruct Counsel regardless of cost.
we have no hesitation in believing that the insurers will instruct Counsel regardless of cost.
Our courts must be ready to deal with the ever increasing complexity of asbestos litigation; health and safety law, liability, causation, date of knowledge etc. CAA believe this is best achieved by ensuring that the most experienced advocates and judges are available to those involved in asbestos related litigation. We believe this is currently available in the Court of Session and accordingly we believe that all asbestos related claims be dealt with at this level.
Public Campaign of the Year – Winners
CAA has campaigned with Thompsons Solicitors for over 25 years to improve the quality of life for sufferers of asbestos related disease. Together, we have been very successful in changing the law in a number of areas. This has led to positive changes for those suffering from asbestos related disease. Those include:
In 2008, our tireless campaigning on behalf of those with an asbestos related disease was recognised when CAA was named Public Campaign of the Year in The Herald Scottish Politician of the Year Awards. View the full newspaper article here (.pdf, 640kb).
Pleural Plaques Campaign
The pleural plaques campaign followed a decision by the House of Lords in 2007 to remove the right of those who suffer from this condition to pursue a claim for compensation through the civil courts. (To read the House of Lords judgement in full, please click here) As civil justice is devolved to the Scottish Parliament, it was possible to instigate a campaign here to restore the right to pursue compensation. The campaign was co-ordinated by CAA who, having gained the support of healthcare professionals throughout Scotland, campaigned tirelessly to also gain the support of a cross party majority of MSPs, including Mr Stuart McMillan MSP who was instrumental in gaining support for the legislation. (Picture: CAA at Scottish Parliament meeting with Scottish Justice Secretary Kenny MacAskill, Stuart McMillan MSP and Councillor Kenny MacClaren.)
The campaign was widely supported by the leading trade unions, personal injury solicitors and by local Councillors and officials. CAA made a written submission to the Justice Committee. Subsequently, Phyllis Craig – Senior Welfare Rights Officer at CAA, the Secretary of CAA – Harry McCluskey – and Frank Maguire of Thompsons Solicitors, gave oral evidence to the Justice committee, highlighting the devastating effect that a diagnosis of pleural plaque invariably has on an individual. The outcome of the campaign was the introduction of the Damages (Asbestos Related Conditions) (Scotland) Act 2009, for which CAA received the coveted Public Campaign of the Year award at the Scottish Politician of the Year ceremony, hosted by The Herald Newspaper.
CAA remained concerned regarding the pleural plaques situation in England & Wales. A written response was submitted to the UK Ministry of Justice consultation regarding pleural plaques in September 2008. The consultation sought views on the decision of the House of Lords to remove pleural plaque as a compensatable condition. The outcome of this consultation remains highly unsatisfactory, as both the previous Labour Government, and the new Coalition Government, refused to follow Scotland’s example and re-introduce the legal right to pursue civil compensation for pleural plaque in England & Wales.
The UK Government did introduce a time limited scheme in England & Wales. However, this scheme closed to new applications on 1 August 2011. As it stands there is no longer any provision to pay civil compensation to anyone suffering from pleural plaques in England & Wales.
Please note: If you currently reside in England or Wales, but have contracted pleural plaques as a result of being exposed to asbestos while working for a company registered in Scotland, you may be able to pursue a civil claim for compensation in Scotland. Please contact us for further advice.
The Northern Ireland assembly followed the Scottish Parliament and introduced The Damages (Asbestos Related Conditions) Bill NI restoring the right of people in Northern Ireland suffering from pleural plaques to claim compensation from December 14, 2011.
The Damages (Scotland) Act 2011
CAA welcomes new laws which will end lengthy legal wrangling over damages claims. The Damages (Scotland) Bill, introduced by Bill Butler MSP, improves rights to damages in respect of personal injuries and wrongful death. CAA were present at the Scottish Parliament to see the Bill being passed unanimously by MSP’s from all parties. The Damages (Scotland) Act will overhaul the current system and provide a fair level of compensation in cases of wrongful death without the need for unnecessarily long and distressing court cases. The changes will benefit hundreds of people across Scotland each year.
Annette Smith, Secretary of CAA, said:
“We have backed these proposals from the outset and this act will be of very real benefit to hundreds of people each year.”
Frank Maguire of Thompsons Solicitors, who helped draft the new Act, explained the practical impact the new Act will have on victims and their loved ones:
It sweeps away what has, up till now, been the law’s anachronistic and sexist view of society, based on an outdated stereo-type of the man as the breadwinner and the woman as the housewife. The new legislation also means families will no longer have details of their income and expenditure scruitinised and argued over in court in their darkest hour.