Asbestos-related Conditions (Healthcare Costs Recovery)

– in the Scottish Parliament on 13th May 2014.

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Photo of John Scott John Scott Conservative

The final item of business is a members’ business debate on motion S4M-09697, in the name of Bill Kidd, on recovering health costs for asbestos-related conditions and diseases. The debate will be concluded without any question being put.

Motion debated,

That the Parliament welcomes the proposals by Clydeside Action on Asbestos regarding the recovery of costs to the NHS of treating people with asbestos-related conditions and diseases and considers that these proposals would address these health issues here in Scotland and, in doing so, help the constituents of Glasgow Anniesland, the home of generations of shipyard and engineering workers and their families, many of whom were exposed to asbestos-related illness during their lives.

Photo of Bill Kidd Bill Kidd Scottish National Party

As members can see, the sun shines on the righteous. Perhaps I should move to another desk.

I am both pleased and saddened to bring this members’ business debate to the chamber. I am pleased because I am very proud of the Scottish Parliament’s commitment across the parties to see justice done for the victims of asbestos exposure and asbestos-related illnesses, but I am, obviously, saddened because I know that we will hear from other members that the rate of deaths from asbestos exposure continues to rise.

The disease can work on a victim without there being many—if any—outward signs for a long period of time, and it can therefore lead to diagnosis and registration as a victim of asbestosis well after the initial exposure occurred. People with asbestos-related symptoms therefore continue to be identified. As well as that, there is often, even now, asbestos in the fabric of public buildings, including schools, and there are continuing dangers of exposure if it is disturbed in any way.

It is therefore incumbent on us in the Parliament to speak out on behalf of our fellow citizens who, through the work of generations, built the economy of our country and, in doing so, were left exposed to that dangerous material and to suffer the consequences later in life. That is consistent with calls from Clydeside Action on Asbestos, the Scottish hazards campaign and the Scottish Trades Union Congress for the recovery of costs and compensation for those who are affected. The medical evidence is very complex, but the truth is that a large number of people are ill, very ill or even terminally ill and need a swift resolution to any claims for compensation.

The dangers of asbestos have been known since at least 1945, but there are difficulties of diagnosis due to the conditions’ similarities with other conditions, and issues of legal divisibility, which arise from workers having had a number of employers with which they may have been exposed to asbestos and may have contracted illness from it, are often raised. In spite of all that, we still know that asbestos diseases exercise a terrible hold on the lives of many. I have therefore felt the need to raise in the Parliament again the issue of asbestos in the lives of Scottish communities, such as those in my constituency of Glasgow Anniesland, which, as most people know, has a shipbuilding and heavy engineering background in which asbestos exposure was rife over many years.

As I said, it is worrying that there is also the issue of potential and actual exposure of pupils and teachers in school buildings of a certain vintage where maintenance has not been done to the standards that we might hope for. The issue will not go away and the numbers affected are rising; my colleague Stuart McMillan will pick up on that issue.

Meanwhile, the national health service is left to pick up the medical costs that, by rights, should be covered by the employing companies and their insurers. Therefore, I support fully Clydeside Action on Asbestos’s considered proposals for the recovery of the treatment costs to the NHS and for compensation to be consistent with the damage suffered by victims and their families.

We owe a very great deal to those people who, over the years, worked long and hard in very difficult industries. We also owe their families, who were often exposed to the asbestos dust that was brought home on people’s boiler suits, which were then washed at home; that exposed wives, partners and children to the dust. It is incredibly important that we do not forget, under any circumstances, the duty that we owe to people who have suffered, whether from pleural plaques, asbestosis or mesothelioma. Everyone who has suffered from the outrage of being exposed to asbestos and has not been properly recompensed deserves our support. The NHS, which finds itself having to care for people in those circumstances, should not be left unsupported financially by those who should have given a greater duty of care to their workers.

Photo of Stuart McMillan Stuart McMillan Scottish National Party

First, I refer members to my entry in the register of members’ interests.

I congratulate Bill Kidd on securing this members’ debate and commend him for raising this important issue. I have been working closely with Clydeside Action on Asbestos and Thompsons Solicitors to introduce a members’ bill on this very issue and I want to highlight a few key points surrounding the proposed bill.

As Bill Kidd said, Scotland’s proud industrial history is scarred by the legacy of asbestos-related disease, which has caused so much harm to so many over the years. It is easy to assume that the health impact of our industrial past is nearing an end and that the number of Scottish citizens and families who will be damaged and killed by asbestos-related diseases will diminish in number and reach zero in the near future. However, that is not the nature of the diseases. Scottish families and communities will continue to suffer because of asbestos-related disease and the NHS, which provides immeasurable care and support to those families, will continue to bear the financial cost for decades to come.

Everyone in Scotland agrees that what the victims of asbestos-related disease have been forced to suffer is wrong; everyone in Scotland agrees that they require the best care and attention that only the Scottish NHS can provide. Nevertheless, it is not fair that the financial burden of providing that care should rest solely on the taxpayer when the companies that exposed our workers to asbestos are well insured, particularly in these financially austere times.

The bill that I propose, with the support of Clydeside Action on Asbestos and Thompsons, is intended to help NHS Scotland recover the costs of treating people with asbestos-related conditions from insurance companies that have settled civil claims with victims. It is estimated that the NHS spends around £20 million a year on diagnosing and treating people who are suffering as a result of asbestos exposure, and that money would be freed up to treat more people were the bill to be successful.

The bill is in its early stages—it is being prepared for consultation—but the powers that are called for in it are within the Parliament’s legal competence. I would hope that there would be no attempt by insurance companies or anyone else to drag the bill through the courts to delay implementation or to attempt to overturn the decisions of this Parliament, as has been the case in the past.

There are many reasons why the bill is necessary, desirable and entirely appropriate. First, Scottish society and industry, and our economy, have benefited from a proud industrial history, but that history is scarred by industrial injury and disease. Nowhere is that seen more acutely than in the cases of the workers who were exposed to asbestos at work.

Secondly, in these financially austere times it is wrong that the taxpayer should bear the full financial burden of caring for victims of asbestos-related disease when there are compensators who have insurance and on whom the burden ought more fairly and appropriately to fall.

Thirdly, although the care that the victims of asbestos-related disease receive is among the highest-quality care in Scotland, more can always be done. Research on asbestos-related cancer must be undertaken and new forms of treatment and care must be found and administered.

It is important to recognise that my proposed member’s bill will not create any new class of person who would be required to pay compensation arising from asbestos-related disease. With regard to the obligation to pay the NHS, benefits would arise only where there is negligence or a breach of a statutory obligation that would give rise to a primary obligation to compensate the victim or, in cases in which exposure to asbestos has caused death, the victim’s family.

We should not underestimate the need to bring the issue before the Scottish Parliament. The emotional and physical cost of being diagnosed with an asbestos-related condition can be significant, and the welfare of the person with the illness is paramount. However, there is a substantial cost to the NHS in diagnosing and managing asbestos-related conditions, and that certainly needs to be addressed.

Photo of Hanzala Malik Hanzala Malik Labour

I thank Des McNulty and Bill Butler, who historically brought the issue to the Scottish Parliament, and I now thank Bill Kidd for bringing today’s debate to the chamber. I cannot miss the opportunity to take part in the debate as I feel that the issue needs to be discussed as openly and widely as possible.

I love the NHS—indeed, I am a regular customer. I am sure that every member in the chamber would agree that it is one of the best institutions in our country. The principle of treatment that is free at the point of use is something that I would fight vigorously to protect. That said, I recognise that it is an institution that has been struggling at its limits in the past few years.

Some may feel that it is time to start looking at how the NHS can recover costs, but I worry about how the proposal would work in a practical sense. Many of the companies whose employees are suffering from asbestos-related illnesses have disappeared. Those companies that have survived and are still operating are struggling in a climate in which budgets are tight, and large unexpected costs would lead to their closure. The difficulties in affordability would crumble those small companies and organisations, which are struggling to ensure that their monthly wage bills are paid so that they do not fail.

I therefore question how reasonable and economically feasible it is to try to recoup costs that have been incurred due to working practices that we did not know were harmful. We do not have a checklist before treatment, and I fear that, depending on the cost, implementing the proposal would start us on the slope of charging for treatment.

I recognise that the NHS is struggling to provide costly treatment to many people who suffer from asbestos-related illnesses, and I understand that something needs to be done, but I do not accept that this proposal is the only way forward. I make it clear on the record that I lend my support to those who are suffering as a result of asbestos-related illnesses—and of any other serious illnesses, for that matter—and to their families, because that is important and it is our duty to do so.

We need to be careful to be fair and transparent. If companies that were guilty in the past no longer exist, there is no way of recovering those costs. If companies are still in operation, we are endangering them. It is the duty of the Government, and not of the companies, to meet those costs. There are many other examples of work-related illnesses that people suffer from, such as passive smoking. Therefore, while I am very supportive not only on this issue but on other related issues, it is the duty of the Government—and not the companies—to look after its communities.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

The subject that we debate tonight is one that I and others have spoken on over the past decade. Hanzala Malik mentioned a couple of our predecessors: Des McNulty and Bill Butler. It is worth saying that on the Tory benches Bill Aitken was assiduous in pursuit of this issue and, on my own benches, the late Margaret Ewing pursued the interests of her constituents, who were mainly in the defence-related industries, on this issue.

In addition, on this one occasion—if on no other—I commend the actions of Johann Lamont, who was the Deputy Minister for Justice when the Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill was taken through this Parliament in 2007. She was very much on the case and supportive of what we needed to do.

Hanzala Malik focused on some of the practical difficulties that there may be for those who end up having to pay, in terms of the motion before us. Let me just say that I have rather less sympathy than perhaps he has. We have heard that awareness of the dangers associated with asbestos dates back to 1946. We have learned more in the meantime, but we have known about the dangers since then. Someone who started work in 1946 is unlikely to be any younger than about 85 or 86 today, so very few people will suffer disease from industrial exposure to asbestos that predates our knowledge of its risk in 1946. Let us get that on the record and in our minds right at the outset.

Let me compare and contrast with another way that the health service pays out costs needlessly: in relation to road traffic accidents. There is already legislation on that, and if members read their insurance policies very carefully, they will see that the NHS can claim against their car insurance to pay for the costs that it incurs. We are not breaching a new principle here: that is already the case in law, and we are extending the principle to people affected by asbestos.

The debate is timely and appropriate. Mesothelioma, which was the subject of the 2007 bill, is a very unusual disease: a condition of the mesothelium, which sits between the lungs and the outside part of the body, which is only caused by asbestos. There is no other known cause, so the responsibility for either of the variants of mesothelioma should be entirely at the door of those who caused it.

How many people will be affected? In 2006 the British Journal of Cancer suggested that there would be 90,000 deaths between 1968 and 2050. However, the numbers in any given year are not many. In 2007, when the regime changed, Frank Maguire from Thompsons Solicitors said that he reckoned that he had 100 active cases. There may not be many at any one particular time, but there are significant numbers over the considerable length of time concerned.

In this Parliament we often have quite robust debates, but there has always been very significant consensus across the Parliament that this is an important issue on which we can seriously contribute something.

In 2006, Johann Lamont said:

“It is only right that we do all we can to minimise the distress this problem causes to those suffering from this disease and to their families as speedily as possible.”

It is now the NHS’s turn to have its rights respected. I have great pleasure in supporting the motion that is the subject of tonight’s debate.

Photo of Jackson Carlaw Jackson Carlaw Conservative

I congratulate Bill Kidd on securing the debate.

I am a 55-year-old proud Glaswegian, so—whatever the political tumult around the subject—I am old enough to have great respect and affection for and pride in Scotland’s industrial heritage and particularly all that Glasgow contributed. I remember the excitement and pride that I felt as a young boy when going through the Clyde tunnel, which had just opened. I appreciate and respect the enormous shipbuilding industry that was the source of all that we enjoyed on the Clyde. When men were achieving those things, John Wayne was the number 1 box office star.

This week, I read a newspaper report about a film that has been released, which shows the construction of the Erskine bridge. The film shows a man 150 feet above the ground, moving across a gap along a suspended and rather bendy bit of wood. That represents an approach to health and safety that we do not recognise today. I have tremendous respect for the people who worked in such conditions.

Stewart Stevenson was right to comment on the cross-party consensus that there is, not around the risk attached to walking across a plank 150 feet above the ground but around the unknowing use of materials that were the source of mesothelioma, which has proved to be a ghastly and fatal illness for so many individuals and their families.

That is why members in the previous parliamentary session agreed that it was important to ensure that the proper level of compensation was paid and that issues to do with pleural plaques were properly debated. Along with Bill Aitken and other Conservative Party members, I, as the party’s health spokesman at the time, was happy to put the Conservatives’ support behind the proposition.

The proposal in the motion is interesting. I am not yet persuaded, but at this stage I will not say that I am not interested in looking further at the detail. I suppose that my concern rests in the area in which Hanzala Malik pitched his contribution. It might be a little disingenuous to suggest that the proposed approach would not breach an established principle, because it would represent a considerable extension to the current approach. Should the health service have recourse against the manufacturers of food, in relation to people who suffer from obesity? Should the NHS recover from the alcohol industry the costs of treating people who suffer from alcoholism? There might be some attractions in such a proposition, but it would represent a fairly dramatic extension of current practice.

I am not a regular user of the national health service; I have used it occasionally and it has been enormously valuable to me. The NHS is funded by our national insurance contributions, and the word “insurance” implies to me that it is a health service that we fund to meet the costs of various risks that arise. Recovering costs in the way that is suggested would not in itself benefit the individuals who have suffered, for whom I have the greatest respect and wish to see everything possible done—indeed, I am concerned that the Courts Reform (Scotland) Bill might make access to justice that bit more difficult by increasing the value of cases that can come before the Court of Session from £5,000 to £150,000.

The proposal in the motion has an interesting aspect, which I would like to see explored. However, at this stage I am not convinced that it is the right approach for us to take, given the precedent that it would set and the temptations that it might offer. We contribute to a national health service, which is there to meet emergencies. What is important is that the people who deserve support and compensation throughout their lives as a result of what they did on behalf of our country are given adequate support.

Photo of Gil Paterson Gil Paterson Scottish National Party

Like other members, I congratulate Bill Kidd on securing this debate on an important issue. I also commend everyone who is involved in Clydeside Action on Asbestos for their sterling work over decades in supporting people who are affected with asbestos-related conditions. There is not a shadow of a doubt that Clydeside Action on Asbestos has made a difference.

It is pleasing to note that, whatever our political beliefs and party membership, members can unite to support sufferers and attempt to get justice for them, given what they have suffered as a result of not having had a safe environment in which to go to work—something that we regard as normal.

It is worth repeating Bill Kidd’s point that, when discussing the effects of asbestos, it is important that we acknowledge that it was not only those who worked in our factories and shipyards who suffered but whole families, as people were affected when the work clothes were washed and then hung out to dry. No one was safe.

That is why I support the motion and the proposals by Clydeside Action on Asbestos. It was not just individual workers who were affected by asbestos-related illnesses. Everyone was affected—men, women and children. Whole generations of Scots have been affected, as well as people further afield. We owe it to those generations to do everything in our power to bring some comfort and give justice on an issue that is a sad reflection of our past.

As the constituency member for Clydebank and Milngavie, I regularly come into contact with large numbers of people who grew up working in the John Brown shipyard and the Singer sewing machine factory. There is still great pride among those people about not only the ships and sewing machines that they built but the strong community that they established in which people looked out for one another. However, there is pride, but there is also anger—anger that they were subjected to working conditions that left long-term scars not only on their bodies but in the lives of their families and loved ones.

With anger comes action. I take this opportunity to praise the volunteers of the Clydebank Asbestos Group, who have played a vital role locally and nationally in fighting for those who suffer from asbestos-related illnesses. I am pleased that, over the past seven years, the Scottish Government has expended a great deal of energy in supporting the compensation claims of those who have suffered from the condition. That was not politically motivated; it was morally motivated, and the Government should be congratulated on what it has done.

As the motion sets out, however, there is work still to be done. Our NHS is under a great deal of strain because of the knock-on effects of welfare cuts. The proposals of Clydeside Action on Asbestos would have a valuable impact on the NHS and would help to address our country’s health issues.

Photo of Michael Matheson Michael Matheson Scottish National Party

Like other members, I congratulate Bill Kidd on securing time for the debate. He and others were right to highlight the significant number of workers in Scotland who, over several generations, have been exposed to asbestos-based materials in their workplaces. For many of those individuals, that has caused a great deal of harm. Through exposure to those materials, they have suffered terrible and debilitating illnesses, which in some cases have been terminal. When we are considering the issues, whether they are to do with compensation, legal action or the NHS’s ability to recover costs, it is extremely important that we never lose sight of the people and families who have suffered as a result of asbestos-related diseases.

To a degree, Jackson Carlaw showed his age, but he illustrated clearly how the traditional heavy industries in the west of Scotland, particularly in greater Glasgow and on the Clyde, exposed workers to asbestos. Although a significant number of people in the greater Glasgow area were, and still are, affected by asbestos-related diseases, the issue is not exclusive to Glasgow and the west coast. As Stewart Stevenson correctly pointed out, my late colleague Margaret Ewing pursued the issue for her constituents who were affected by asbestos-related diseases associated with the defence industry. The issue affects the whole of Scotland, although I recognise that it does so to different degrees in different parts of the country.

Members would expect the Government to take the matter seriously and, as a Government, we recognise that it is an issue of particular importance. We should consider the possibility of the NHS being able to recover costs and, more important, ensuring that those who have asbestos-related illnesses receive the best possible healthcare.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

The minister might care to note that Crown immunity has, in effect, prevented many of those who were involved in defence from having the kind of recourse that has been available to those who worked in the shipyards.

Photo of Michael Matheson Michael Matheson Scottish National Party

I am aware of that, but it was useful to illustrate that asbestos was not peculiar to Glasgow and the west coast of Scotland.

Members will also recall that, since coming to power in 2007, we have been proactive. With cross-party support, we introduced the Damages (Asbestos-related Conditions) (Scotland) Act 2009, which protected the rights of those who have suffered from asbestos-related conditions to claim the damages that are due to them.

In his speech, Stuart McMillan highlighted the work that he has been doing with Clydeside Action on Asbestos on the proposal that, in cases in which individuals with an asbestos-related illness receive compensation for their condition, the NHS should be given the power to recover from the compensator—not the company or the individual, but the insurance company that provides the compensation—the costs of treating the individual.

Clydeside Action on Asbestos estimates that the NHS spends more than £20 million a year diagnosing and treating people suffering from asbestos-related conditions. Although the amount that would be recovered by the NHS in Scotland would depend on the approach that was taken, the recovery of funds would allow for that money to be reinvested in front-line NHS services. We do that with our existing NHS cost recovery scheme, to which Stewart Stevenson referred. Last year, we recovered more than £14 million through it and, since the scheme was introduced in 2007, the NHS has been able to recover £86.5 million through it.

Members will be aware that that is not a new idea. The Welsh Assembly has passed a bill introducing such measures. The Welsh bill allows for a tariff-based system that is very similar to the cost recovery system that we already have in the NHS for personal injuries.

The Deputy Presiding Officer:

Minister, I draw to your attention the sub judice issues with regard to the Welsh bill at the moment, although I am sure that you are aware of them.

Photo of Michael Matheson Michael Matheson Scottish National Party

I am aware of that.

The Welsh Assembly estimates that the scheme will draw in around £1 million. However, it has been referred to the Supreme Court, which is due to consider it this week. We are watching the outcome of the Supreme Court’s deliberations carefully and will consider the issue once it has ruled, which is expected to be in June or July this year.

Any proposals that may provide additional resources to the NHS have obviously to be welcomed because those resources could be invested in front-line patient care. The Cabinet Secretary for Health and Wellbeing met Stuart McMillan and Clydeside Action on Asbestos last year to discuss the issue and has given an assurance that we will consider some of the issues around their proposal.

A number of questions would clearly have to be considered. Among them are questions about who would administer such a scheme and the cost of administering it. They also include questions on operational aspects, such as the treatment period over which costs may be recovered, and on the total amount that the NHS is likely to recover.

Those issues and many more would have to be explored. However, I can inform members that Government officials are already considering them.

I am sure that all members recognise that, since its inception, Clydeside Action on Asbestos has been a tireless campaigner on behalf of those affected by asbestos-related diseases. The campaigning of this particular charity has led to many successful outcomes, improving the lives of many who have suffered a great deal. It is important that, tonight, we recognise the work that Clydeside Action on Asbestos has done—not only in terms of the campaigning that it has undertaken over the past 30 years but also in terms of the practical, day-to-day support that it has provided to individuals and families, whose quality of life has been improved by the organisation’s provision of resources and information. I wish it well in that continued work, and I hope that members are reassured that the Government will continue to do what we can to ensure that patients who suffer from asbestos-related illnesses receive the best possible care within our national health service. Of course, we will continue to consider Stuart McMillan’s proposal as it is brought forward to see whether it can add value to the existing scheme for compensation in NHS Scotland.

Meeting closed at 18:50.