Living With Mesothelioma -My Diary- All eyes on The Referral of the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill to the Supreme Court

Just ask A-A-S-C!

All eyes are on Wales as a judgement is to be made On the The Referral of the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill to the Supreme Court

The purpose of the Bill, to recover costs incurred by the NHS in Wales by treating patients suffering from such asbestos-related diseases from a liable employer or insurer, follows the established principle that the polluter pays. As an organisation which campaigns for the rights of people injured through no fault of their own, APIL believes that it should be the wrongdoer, and not the state, who should pay the costs of compensating and supporting someone who has been injured or who suffers diseases due to negligence.
The Money is needed to put back into the NHS to help pay for more Special Nurses and to fund treatment of mesothelioma Patients.

The stated objective of the Bill is to recover the costs incurred by the NHS in Wales from the liable employer or insurer. The Bill, as drafted, establishes who will be liable to pay the costs, the mechanism for how those costs will be paid, and the timeframe of when the costs have to be paid. APIL is therefore satisfied that the Bill delivers the stated objectives as set out in the explanatory memorandum.

Different organisations and stakeholders will have to carry out various tasks as a result of the changes proposed in the Bill. Insurers will have to apply for the certificate setting out the amount of costs to be paid, the Compensation Recovery Unit will then have to co-ordinate with the relevant NHS Trusts and Local Health Boards, and the NHS Trusts and Local Health Boards will have to calculate how much is to be recovered.

The explanatory memorandum explains that the patient will have to supply the compensator with details of medical treatment. The lawyer acting for the patient, therefore, may have to ensure that information is kept about the location and nature of the treatment received, as the patient may not be able to recall such detailed information. The patient may have received medical treatment not only in Wales, but in England as well, and the lawyer will have to assist the patient in only supplying the relevant information, as some vulnerable patients may find this confusing.

As the NHS in Wales will now have a vested interest in successful litigation, APIL hopes that this Bill will result in the patients’ medical records being supplied much more quickly during the initial claim for compensation. If medical records are obtained much earlier, a compensation award could be made much more quickly, providing the financial support for the patient, and also allowing the NHS in Wales to recover its costs from the liable defendant.

The impact on all the above, however, is relatively small compared to the benefits that this Bill will deliver for the NHS and potentially for sufferers of asbestos-related diseases.

There are some barriers that may prevent the NHS in Wales from recovering the costs from the liable defendant. One such barrier could be enforcement issues, such as ensuring that the liable defendant pays the correct costs within the imposed timeframe. In this instance, however, section 8 of the Bill, recovery of charges, gives powers to allow Welsh Ministers to demand payment, if needed.

Another barrier, which the Bill would be unable to deal with as it is an issue for the UK Government, is the number of sufferers of asbestos-related diseases who are unable to trace an insurer, which means compensation cannot be recovered. The explanatory memorandum issued with the Bill reveals that it can take “anywhere between 10 and 60 years for symptoms to develop after exposure to asbestos

During this time, an employer could have gone out of business and the employers’ liability (EL) policy could have been lost.

An Employers’ Liability Tracing Office (ELTO) has been established to help search for EL policies across the UK. According to its annual report, between May 2011 and April 2012, ELTO had a success rate of 71 per cent in tracing EL insurance policies

While it is unknown how many sufferers of asbestos-related diseases could not trace an EL policy in Wales, it is inevitable that such cases do exist, and the NHS may be unable to recover the costs incurred by the NHS in Wales in these cases.

The Bill is likely to have a financial impact on the insurance industry which will almost always be the compensator. The Welsh Government and the NHS in Wales will also bear some operating costs, as explained in the explanatory memorandum.

The costs incurred, however, will be nothing compared to the pain and suffering of victims of asbestos-related diseases, and this Bill recognises that in terms of caring and supporting for a sufferer of one of the diseases, it should be the liable defendant who should cover the costs.

According to figures obtained from the Office of National Statistics following a Freedom of Information request by APIL, there were 457 deaths in Wales between 2006 and 2010 in which mesothelioma was the underlying cause. With the death rate from mesothelioma expected to peak by 2016, according to the Bill’s explanatory memorandum[1], APIL believes this Bill to be very timely.

A legal dispute over an attempt to force companies to pay the medical costs of staff made ill by asbestos has been referred to the Supreme Court.

A bill passed by AMs would make firms reimburse the NHS for workers needing treatment due to exposure to asbestos.

The Welsh government’s law officer has asked the Supreme Court to decide whether the assembly has the power to pass the legislation.

The insurance industry says the bill goes beyond its law-making powers.

It is the first time Counsel General Theodore Huckle QC – who gives the Welsh government advice on legislative matters – has made such a referral to the Supreme Court, although similar cases have been brought by the UK government.

The court upheld a bill passed by the assembly to reform local government bylaws in November after it was challenged by the Attorney General Dominic Grieve.

The attorney general is also challenging an attempt by Welsh ministers to set the wages of farm workers.

The Supreme Court is due to hear the case in February.

The Recovery of Medical Costs for Asbestos Diseases (Wales) Bill was introduced by Labour backbencher Mick Antoniw.

Action Mesothelioma Charter
 Please sign and e need this in all the UK
We, the undersigned, believe that:Mesothelioma patients and their families have a right to:

1. a speedy and accurate diagnosis, supported by a Multi Disciplinary Team discussion.

2. good quality information from a variety of sources available in different media and languages

3. support of a suitably qualified nurse and other Multi Disciplinary Team members throughout their illness

4. be considered for the best possible treatments available with the support and input of a Multi Disciplinary Team

5. have up-to-date advice on benefits and help in applying for them, and receive prompt payment of benefits

6. have legal advice and guidance from a firm of solicitors experienced in mesothelioma claims

7. guidance on end of life decisions and care at home

8. provision of a consistent nationwide service from coroners using a clear and open process with a maximum case length of three months.

And call upon the Government to:

9. have mesothelioma made a national priority by the Cancer Tsar

10. fund good quality research, alongside other national bodies, on mesothelioma with a view to improving diagnosis, treatment and outcomes for patients

11. support the production of clinical Guidelines on the best practice of diagnosis and management of mesothelioma

12. ensure the Health and Safety Executive vigorously enforce existing regulations on asbestos

And call upon all employers to:

13. prevent future exposure to asbestos by providing a safe working environment with all necessary equipment to protect employees.

14. work with unions and individuals to ensure enforcement of current regulations to safeguard all employees.

15. identify all asbestos in their properties and organise its safe removal where practical or necessary when work is being carried out.

Mesothelioma is a malignant lung disease which results mainly from exposure to asbestos. Someone dies every five hours from mesothelioma in the



AASC ( Asbestos Awareness & Support Cymru)
Tel 02920 363550



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