Jenny Dickson

It’s an advert we see regularly on daytime TV: “Have you been in an accident or do you have an illness because of work? If so we can help you claim!”

For thousands of individuals across Scotland, it is a welcome message, particularly for those who have been in and out of hospital due to various illnesses contracted as a result of their work environments.

In its 70 years, NHS Scotland has had to treat many thousands of people for industrial disease-related illnesses, and it continues to spend significant amounts of money on these treatments. While NHS Scotland has high costs for treating these illnesses, it has had no opportunity to recover the associated costs.

New legislation, the Proposed Recovery of Medical Costs for Industrial Disease (Scotland) Bill has been put forward by Stuart McMillan MSP and is designed to address this issue, by giving ministers the power to recover certain costs for NHS Scotland that are associated with treatment of these illnesses.

If the bill is approved, it is hoped that NHS Scotland will be able recover these costs in the same way they can recover costs for treating injuries from other causes, such as those caused by road traffic accidents.

Whilst the bill has been warmly received, and is likely to receive cross-party support due to the massive benefit it could have to the NHS in Scotland, there are various questions being raised around how it will be used in practice.

With little or no effect on individual claimants, many will argue that this bill is a no-brainer. The NHS will still be free at the point of delivery and businesses will not be paying directly back to NHS Scotland – their insurers will – which could mean raised premiums, but that might not necessarily greatly affect them.

However, the practical application of the bill could cause confusion from a legal perspective.

Take asbestos as an example: there could be difficulty determining what illness or diseases are directly caused by asbestos exposure. Also, since the bill isn’t retrospective, it can only recover costs incurred after exposure to asbestos. This means that the NHS won’t be able to recoup money spent on patients exposed to asbestos before the bill is passed.

With general safety around asbestos increased, it is difficult to determine how much NHS Scotland will benefit from the bill in the future, particularly when a disease from this kind of exposure can take many years to come to fruition.

Other industrial diseases currently covered by the bill include noise-induced industrial hearing loss and skin conditions from working with chemicals or even certain types of rubber. However, these diseases are also in decline as employers become more aware of the effects on employees.

Looking ahead, we can’t predict what the next industrial disease could be, and this bill would safeguard NHS Scotland from footing the bill for that unknown – which, if it’s something like asbestos, could recover a lot of money in future.

The bill would be a pilot for best practice as there are no current plans for similar bills for NHS England and Wales, and could make a significant difference to the NHS Scotland going forward. However, it’s unclear whether it will deliver what it’s intended to when put into practice – we will just have to wait and see.

Jenny Dickson is a partner and solicitor advocate at Morton Fraser. This article first appeared in The Herald.