Liability for NHS Charges (Treatment of Industrial Disease) (Scotland) Bill

Some employers may be incentivised to improve working conditions if they believe that they will be responsible for the repayment of associated NHS charges if an individual develops an industrial disease due to a failure to adhere to health and safety law. However, there does appear to be an expectation that these additional costs will be dealt with by existing insurance arrangements so the extent of that being an influencing factor is uncertain.
Working practices have in general terms improved over recent years and robust measures are already in place to protect employees in hazardous workplaces. It is not possible to say what further improvement is likely to take place as a result of this Bill, but there should not be any worsening of conditions for employees.
There are also a number of practical aspects that need to be dealt with and notably that in the case of industrial diseases, the symptoms do not necessarily become apparent for many years after the exposure takes place, by which time, the employer may no longer exist or have changed entirely. Immediate impact might therefore be regarded as unlikely.

As mentioned in our previous answer, the symptoms of many industrial diseases only become apparent many years after the causative exposure, which is readily identified in relation to asbestos related disease. Asbestos claims and other diseases with a lengthy latency period will continue to arise irrespective of the introduction of this Bill and it is not clear how the Bill, of itself, will influence things to reduce incidences of industrial disease.
In conjunction with the extensive existing health and safety legislation in place to protect employees, it is anticipated that the developments in health and safety and improved working conditions over recent years will contribute to reducing the instances of industrial disease going forward.
There is also much speculation but it is not possible to predict what the “next industrial disease” will be so it is impossible to identify those future areas.
There can be challenges in identifying the specific exposure which directly leads to industrial disease as it can occur in any number of situations at a workplace, in a public building, in the home or even transferred in the atmosphere in another situation which exemplifies the challenges in this area.
The prevalence of co-morbid conditions in people with industrial diseases introduces considerable complexity where an individual receiving NHS treatment has a number of other conditions at the same time as suffering the effects of an industrial disease. The NHS will treat the patient’s symptoms rather than attempting to trace the cause of every symptom individually so in many cases, it will be impossible to attribute or apportion the NHS treatment to individual causes.

It is difficult to see what impact the Bill might have on individuals other than where they operate small businesses with a limited number of employees and the Bill may introduce higher operating costs.

The sums that will be repaid as a result of the Bill are unclear as is the cost of administering the recovery process therefore it is not possible to assess the cost-effectiveness of proposals. Whilst the Bill may seem an attractive proposition for NHS boards on the surface, there are a number of barriers that may mean this is not actually the case.
In many cases the person receiving treatment for an industrial disease may have several co-morbid conditions, unrelated to the industrial disease and the difficulties of separating out the disease-related costs may not be feasible. We would caution against any inclination to impose all treatment cost (included unrelated) on an employer. Also, where the employer may no longer exist, the imposition of a large treatment cost may result in a lengthy appeals process and/or legal challenges.
It is also worthy of note that the NHS, Scottish Government and Local Authorities are employers in this area and therefore it will mean a large amount of administrative cost and burden to see money flowing between departments. When the public purse is under severe pressure, the practical effect of the Bill will be to create a large administrative cost against the likelihood of great uncertainty over what sums will actually be recovered or indeed when that will be clearly visible as to effectiveness.
The proposals will inevitably create a large administrative burden on NHS and clinician time to deal with attributing treatment to specific conditions which will take front line clinicians away from delivering the vitally important services they provide.

It is difficult to see the Bill having a significant impact on day to day activities in workplaces. Businesses are constantly working to ensure that health and safety is as good as it can be in every workplace and there have been significant improvements in recent years. The introduction of this Bill is unlikely to significantly impact upon the efforts already being made by businesses to protect employees.

Whilst the Bill specifically states that the liability to repay the NHS charges rests with the employer/wrongdoer, the explanatory documentation produced with the Bill suggests that the assumption is that those required to meet NHS costs will be indemnified by insurers.
On that basis, for employers where there is a risk of industrial disease, it follows that they will see their premiums increase to cover the potential liability for NHS costs.
The implication therefore has to be that insurance premiums for businesses operating in Scotland (as opposed the rest of the UK) will also increase if there are NHS costs which have to be repaid, increasing the cost of doing business in Scotland depending on the level of hazards in working environments, and the risk management approach of that business.
There could also be jurisdictional challenges if an employer does business throughout the UK and distinctions need to be drawn regarding exposure and/or treatment occurring in another jurisdiction.