Recovery of NHS Costs
Response from UNISON Scotland to the
Scottish Executive Consultation Paper:
The recovery of NHS costs in cases involving personal injury compensation
UNISON Scotland is opposed to the Executive's
proposals as they presently stand.
The Executive has not had regard to the cost
to the union in pursuing personal injury cases.
The Executive has not had proper regard to the
risk occasioned to the union in pursuing personal injury cases.
It is unfair that the Executive allows monies
to be accrued to the taxpayer from the costs and risk taken
by the union without any commensurate means of improving the
ability of the Union to pursue cases.
The Executive is being unfair in allowing a
position in England and Wales to exist whereby we as a union
are able to recover notional insurance premia in successful
cases but not in Scotland. The accidents and diseases and health
considerations are the same for members in Scotland as in England
As a major NHS union with considerable health
and safety issues we consider that any additional funds from
recovery of NHS charges should be channelled into improving
the health and safety of our members employed by the NHS.
We also consider that resources from NHS charges
recovered should be applied to occupational health projects
for our members in the NHS and workers across Scotland.
We are not satisfied that any funds recovered
by recovery of NHS charges would not be used to deplete the
overall NHS budget.
1.1 We are Scotland's largest Trade Union, representing 150,000
members delivering public services in Local Government, Health,
further and higher education, energy (gas and electricity), water,
transport and the voluntary and community sector. We represent
the majority of the employees of the National Health Service in
1.2 We provide our members with a legal advice and assistance
service. The service is for members who suffer injury in the course
of their work through accident or industrial disease. The service
is also extended in relation to personal injury sustained by our
members and their families outside work. The cost of providing
the service to our members is considerable both in terms of actual
cost and administration costs. This shall be discussed further
1.3 By way of an insight into the extent of the service we provide,
we can confirm that during the last quarter, one of the Solicitors
whom we instruct concluded 218 cases of which 60% were successful.
The cases covered the full spectrum of personal injury claims
including accidents at work, criminal injury compensation applications,
lung disease, deafness, vibration white finger, strain injuries
and road traffic accidents.
The Cost of Providing Legal Services
2.1 As things presently stand, running the legal service to which
we have referred above requires considerable resources and costs
both in terms of actual costs and administration costs. We shall
describe each of the costs in turn.
2.2 The cost of ongoing funding
When a Court action is successful, the successful party is
of course entitled to recover Court expenses from the Defender.
Court actions can however take a considerable period of time
to be brought to a conclusion. The statistics produced by our
Solicitors for the previous quarter shows that the average length
of the cases concluded for that quarter was two years. During
the course of an action it is necessary to fund various expenses
and outlays including the cost of obtaining a medical report,
medical records, an engineers report and Court dues. These costs
must be met as they are incurred and there is accordingly a
considerable delay between us funding Court costs and recovering
same. This cash flow issue clearly places a strain on our members'
2.3 Unrecovered disbursements
Allied to the previous point, is the fact that
there will inevitably be items of expenditure which the Auditor
of Court will not permit our Solicitors to recover from the Defenders.
It is necessary for us to write off these items of unrecovered
disbursements from our members' funds as part of our legal service
In certain circumstances it is necessary to carry out investigations
before it is possible to take a view upon whether or not there
is any merit to a compensation claim. In cases, such as strain
or stress injuries, where the key element is whether or not
the injury can be tied, as a matter of medical causation, to
the working activity, it is necessary to obtain a medical report
before any view can be taken upon the likelihood of success
medical reports can be extremely expensive and he who pays the
piper does not pick the tune. There are accordingly many instances
where a report obtained upon our members' behalf in those circumstances
concludes that there is no link between the strain or stress
and working environment. In those circumstances no claim can
be advanced but the Union has incurred financial costs. The
costs cannot be recovered from any other party and the Union
must meet the cost from it's own funds.
2.5 Lost and Abandoned Cases
Not every Court action that is raised will be
Firstly, there are occasions where it is necessary to raise
Court proceedings simply to protect a members' rights in relation
to the time bar provisions in the law and to thereafter carry
out investigations into the likelihood of success of the action.
This is commonly the case with industrial disease claims. As
discussed in the preceding paragraph, there will be occasions
where the investigations disclose that there is no basis of
claim and it is necessary to abandon the action. The cost of
raising Court proceedings, investigating the action and the
cost of any medical is obtained must be met by the Union.
Secondly, our members are not always successful when their
cases are heard before a Judge. Cases are often lost on the
basis of credibility. There is no way to predict whether or
not the Judge hearing a Court action will find the Pursuer to
be a reliable witness. If the Pursuer is not found to be reliable
he will lose and the cost to the Union will be considerable.
The cost of losing a four day Hearing in the Court of Session
is substantial. Our Union's funds cannot withstand too many
hits on that level.
2.6 Administration Costs
The legal service we provide for our members also carries a
"hidden" administration cost. We employ full time
staff to assist with the administration of the service. We employ
administration staff and a legal officer. Our regional officers
and Scottish Organisers also assist with certain claims in terms
of undertaking investigations and obtaining supportive documentation.
Funding a Legal Service in England & Wales
3.1 From the foregoing the cost of providing our members with
a legal advice and assistance service is a considerable drain
on the member's funds. In contrast the UK Parliament has recently
acknowledged the benefit of Trade Union legal assistance services
and accordingly alter the position in relation to funding union
backed Court actions in England and Wales. This union with regard
to similar claims for its members arising in English and Welsh
institutions in the Health Service and elsewhere is now able to
recover a notional insurance premium from the defenders at the
conclusion of the claim for compensation. This recognises the
considerable risk that the union is taking in pursuing these cases
and from which the tax payer through recovery of CRU benefit and
NHS charges would gain. It also enables the union to continue
to sustain the actual hidden costs in providing such a legal service.
3.2 The same costs similarly apply in Scotland but there is no
provision for recovery on notional insurance premium to recognise
the risk. We can see no reason whatsoever why a similar system
cannot be implemented in Scotland.
Accidents and Diseases within the NHSiS
4.1 Many of our members incur injury and disease
in the course of working in the Health Service. The NHS and Trusts
have failed in many cases to exercise reasonable care and comply
with the relevant Statutory Regulations in protecting our members
in their work. The spectrum of cases to which we have referred applies
to the NHS.
4.2 We are also extremely concerned regarding the
number of criminal assaults on our members which is giving rise
to an increasing number of CICA claims.
4.3 We are also extremely concerned regarding the
rise in work related stress cases. A personal injury case is not
necessarily the means of assisting our members. Often by then it
is too late. The harm as it were has been done It also has to be
borne in mind that pursuing a case for compensation carries its
own stress when it can least be sustained. Studies show that an
early, caring and amicable intervention will often prevent the situation
escalating and will allow the individual affected to continue working
in a fruitful and positive manner.
4.4 We are far from satisfied that the NHS is providing
our members with a proper health and safety environment, attending
to increasing number of assaults on our members, and is certainly
failing to address the problem of work related stress.
Grounds of Opposition
We have four main grounds of opposition to the proposals as they
1. Accident Prevention In The NHS And Occupational Health
1.1 As the Executive acknowledge, a positive benefit of the proposals
is in terms of accident prevention. The higher sums an employer/insurer
is required to pay in the form of compensation the greater incentive
there is for the employer to improve its own health and safety
at work. We agree with this position and confirm that such means
of accident prevention is not only legitimate but one for which
more consideration should be given.
1.2 As we have previously stated, we represent a large number
of the staff employed by the NHS and we are extremely concerned
to see that our members' employed in that service shall not benefit
from the same protection of the proposed law. We understand why
it would not be appropriate for the NHS to make a payment in respect
of NHS charges in a claim directed against it. We however are
firmly of the view that some measure must be taken to ensure that
our members who are employed by the NHS also have improved health
and safety. To do otherwise is to suggest that employees of the
National Health Service are less entitled to a safe working environment
than other employees.
1.3 The money recovered by the NHS should be used to benefit
NHS employees both in terms of prevention and occupational health.
Rather than the NHS charges which are recovered being absorbed
or lost in the general NHS budget, the funds should instead be
directed towards improving the NHS's health and safety record
and also for the benefit of NHS workers who have been injured
by increasing the NHS's occupational health provision. As we have
indicated to the Executive we are already increasingly concerned
regarding the number of criminal assaults to our members in the
NHS and the rise of work related stress.
1.4 Allocation of resources to occupational health would also
assist other workers who have been injured as a result of negligence
of employers. Compensation is only one factor in a worker coming
to terms with injury and disease. Occupational health would also
play a role in prevention of such accidents or diseases.
2. Additional Strain On The Union's Resources
2.1 We have already set out the actual and administrative costs
to the Union in providing a full legal service to its members.
The proposals will increase the strain on the Union. It will lead
to an increase both in terms of actual costs and administration.
2.2 It will also increase the potential to the union of bearing
the costs of lost Court actions.
2.3 It is common to hear an Insurer say that a case is being
settled on "an economic basis". This represent the fact
that the compensation value of the case is relatively low and
that, in light of the low value, the Insurer is not prepared to
take the risk of meeting the cost of a Court action. The proposals
will increase the amount that an Insurer will be required to pay
in every case. There will be many cases where the level of compensation
to which an injured party is entitled is small but the recoverable
NHS charges is high. In those cases there will no longer be an
economic incentive to the Insurer to settle. This in turn means
that it will be necessary to litigate more cases. We have already
explained why and how Court actions are a drain on the Union's
fund. Accordingly, the proposals, if introduced, would result
in the Union incurring greater costs than present in terms of
funding, investigation and unrecovered disbursements. It will
also be appreciated that if it is necessary to raise more Court
actions there is a likelihood that more cases will be lost to
the significant cost of the Union.
3. NHS Budget
3.1 In any event we are also concerned that the Government may
use the sums recovered under the proposals to decrease the funds
that the Government would otherwise have made available to the
NHS. This would be entirely unacceptable. The proposals must exist
to provide additional funding over and above that which the Government
is prepared to commit to the NHS in any given year.
4.1 The Executive honestly describes the proposals as parasitical.
We echo this view. The particularly unfair aspect is in respect
that the Executive benefits from the proposals but take no risks
whatsoever. In contrast, for all of the reasons described above,
the proposals shall increase the risk to us and shall increase
the cost of our legal service. The position is not acceptable.
4.2 The Executive should acknowledge the additional strain it
is placing on the Union by bringing Trade Unions in Scotland in
line with Trade Unions in England and Wales and by allowing the
recovery of notional insurance premiums.
For Further Information Please Contact:
Matt Smith, Scottish Secretary
14, West Campbell Street,
Glasgow G2 6RX
Tel 0141-332 0006 Fax 0141 342 2835