New legislation proposed for NHS charges in industrial disease claims in Scotland

On 10 March 2020 the Liability for NHS Charges (Treatment of Industrial Disease) (Scotland) Bill was introduced to the Scottish Parliament. If enacted, it would allow recovery by the state of charges incurred by the health service in the provision of treatment to pursuers with industrial diseases.

“Industrial disease” is widely defined in order to cover not only conditions contracted by employees but also harm suffered by their family members, for example, a disease contracted by a relative caused by a hazardous substance taken home on a worker’s clothing.

The Bill is sponsored by Stuart McMillan MSP and is his second attempt at such legislation. The proposed recovery of NHS charges is on a non-retrospective basis, i.e. only in respect of diseases for which the cause of action arises after commencement. It is worth recalling that retrospective effect was one of the serious flaws in the previous attempt to introduce similar legislation in the narrower field of asbestos-related diseases only.

Under the Bill, the obligation on compensators to repay NHS charges would not, of itself, affect insurers’ liability because policies are not to be treated as automatically covering the payment. It seems that there is a structural reason for this, being that ‘insurance’ is a reserved matter.

The Bill provides for a one year lead in period between Royal Assent and the substantive provisions coming into force to allow industrial employers to seek insurance cover for this additional liability and to enable the state to put new administrative arrangements in place. With regard to the former, it would seem likely that insurers would extend cover in liability policies covering claims in Scotland. For the latter, it appears likely that the recoupment would be undertaken via the existing Compensation Recovery Unit.

At only six clauses the Bill is fairly brief and is intended to operate by way of amendment to the current legislation on recovery of NHS treatment charges in accident / delict claims generally. That would mean that the relevant tariffs (for ambulance transfers, in and out-patient treatments) and the overall cap should apply. Regulations made under the Bill would allow for reduction in the recoverable charges payable where harmful events span the commencement date.

This Member’s Bill has now been allocated to the Health and Sport Committee for consideration at stage one of the three stage legislative process. A date has not yet been set for completion of stage one and the Bill does not appear on the agenda for the Committee’s meeting on 24 March 2020.

A link to the parliamentary webpage for this Bill is here.


Andrew Gilmour, Partner, BLM

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