UPDATE: The bill referred to in this blog has been withdrawn. It is not known, at this stage whether the bill, or a similar one, will be re-introduced after the Scottish Government election is not yet known

The Scottish Parliament's Health and Sport Committee has backed a bill which proposes to allow the Scottish Government to recover NHS costs relating to the treatment of industrial diseases in Scotland. The Committee does, however, have outstanding questions in relation to how the scheme will be administered and associated costs.

Under the present scheme, administered across the UK by the Compensation Recovery Unit (CRU) (a part of the Department for Work and Pensions (DWP)), NHS costs associated with personal injury claims can be recovered from the wrongdoer if the claim is successful. At present, industrial diseases are excluded from the scheme.

The Liability for NHS Charges (Treatment of Industrial Disease) (Scotland) Bill was introduced in the Scottish Parliament on 9 March 2020 following a consultation process in which Brodies participated. The bill seeks to extend the scope of section 150 of the Health and Social Care (Community Health and Standards) Act 2003 to expressly include industrial disease, while continuing to exclude other diseases. As it stands, the legislation will not have retrospective effect and so NHS charges will not be recoverable in industrial disease claims where exposure has ceased before the Act comes in to force.

The bill covers all industrial diseases listed in the DWP guidance for eligibility criteria for Industrial Injuries Disablement Benefits - as seen here. One key detail is that the new scheme is also intended to cover Covid-19 related illnesses as well as mental health related illnesses - that is, they would fall within the definition of an industrial disease.

There are, however, several practical difficulties that will flow from the administration of such a scheme. For example, issues of causation when identifying whether the disease arises from employment (particularly pertinent in the context of Covid-19), but also the actual NHS treatment of such disease in people who have other conditions which require treatment. Overall, the expectation is that the scheme would increase the costs of dealing with, and settling claims for industrial disease for employers, and their insurers.

In the Health and Sport Committee's recent report it is acknowledged that making such a change north of the border, where no similar scheme is intended in England & Wales could indeed have impact on insurance premiums for businesses operating in Scotland, and may create difficulties within the insurance industry.

As noted, the conclusion of the Stage 1 report by the Health and Sport Committee was that the general aims of the bill were supported, however there remains some concerns about the scheme and more detailed costings are required before the bill can be passed.


Ellen Andrew


Laura McMillan

Partner & Director of Advocacy