Scottish Parliamentary Committee hears evidence on extending recovery of NHS charges to disease claims

On 3 November 2020, the Health and Sport Committee of the Scottish Parliament continued its stage 1 consideration of the Liability for NHS Charges (Industrial Disease) (Scotland) Bill, taking evidence from: the Association of Personal Injury Lawyers (APIL), the Forum of Scottish Claims Managers (FSCM), a Professor in occupational and environmental health and from a pursuer’s solicitor.

If enacted, the legislation would allow for the recovery by the state of charges incurred by the health service in treating pursuers with industrial diseases where they obtain compensation for the disease (but only when the cause of action arises after commencement).

Evidence given on behalf of APIL and FSCM highlighted the potential unintended consequences of the legislation. Both representatives agreed that the potential additional liability to repay the state for NHS charges could complicate matters further, for example in terms of causation and contribution between defenders, and perhaps delay settlements. They also agreed that if the scheme were to become law then it would make sense for it to be administered by the UK-wide Compensation Recovery Unit (CRU) of the Department for Work and Pensions (DWP).

The FSCM representative also emphasised that this would, however, place an additional burden on the CRU, beyond the initial set-up costs and operating costs, because of the increased scope for disputes in relation to diseases when compared to accident claims. In his opinion, there would be a higher proportion of reviews of and appeals against certificates of NHS charges in industrial disease cases than in other areas. There was also a potential to burden clinicians in requiring them to determine the extent to which the need for particular treatment arose from an industrial disease and to take a view on the significance of any co-morbidities.

The pursuer’s solicitor agreed that claims in this area can be “full of complexity” but considered that any such difficulties caused by the Bill could be overcome by those working in this field. However, the FCSM representative disagreed and took the view that there were fundamental difficulties with the Bill which could not be resolved by amendment and which could only be avoided by Parliament not proceeding with it.

Although the Bill does not directly impact on insurance – which is a matter reserved to the exclusive competence of the UK Parliament – Willie Rennie, MSP and Leader of the Scottish Liberal Democrats, asked whether the proposals might mean higher premiums for businesses operating in Scotland compared to in England and what it might mean for companies that straddle different parts of the UK. The FSCM representative considered that the extent of the risk would likely be uncertain for some time and therefore could indeed drive up premiums for businesses operating in Scotland.

The Committee will hear further evidence on the Bill on 10 November 2020 from the Scottish Government and also from Stuart McMillan MSP, the member responsible for this Bill, and will then produce a stage 1 report. Following a stage 1 debate in Parliament – which must take place by 15 January 2021 – MSPs will vote on its general principles. If it passes this stage then amendments would be possible during stages 2 and 3.

The reality is that this Bill is competing for air time against an already fairly full Parliamentary timetable subject to additional pressures due to Coronavirus and therefore, the prospects of it being enacted are unclear. It will simply lapse unless it has cleared all three stages before the current session of the Scottish Parliament finishes in March 2021 ahead of the election on 6 May 2021.


Lorna Ferguson is a Partner at BLM
lorna.ferguson@blmlaw.com

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