Global Asbestos Congress 2000

Submission to All Party Group on Occupational Safety and Health-Asbestos Sub-Group. 15 March 2000

The Liverpool & District Victims of Asbestos Support Group organised a consultative meeting which took place on Friday 18 February 2000 at the Greater Manchester Hazards Centre with representatives of the following Victims of Asbestos Support Groups (VASG's) to discuss proposals for submission to the inaugural meeting of the above committee to be held in the House of Commons on Wednesday 15 March 2000 at 4.00pm in the House of Commons. Committee room 20.

Those groups represented were:

Bradford VASG
Manchester VASG
Liverpool VASG

Apologies received from:
Sheffield & Rotherham VASG
Tyneside Trade Union Resource Centre.

The meeting discussed the following proposals for consideration. Appendixes are attached and noted in support of the proposals.

Submission to All Party Group on Occupational Safety and Health-Asbestos Sub-Group. 15 March 2000

Contents

  1. Duplicate diagnosis of mesothelioma for the purpose of applying for Industrial Injuries Disablement Benefit. (IIDB). Prescribed disease D3.
  2. Asbestos related disease sufferers and their relationship with Health care Professionals.
  3. Issuing of DS 1500 report form. ("special rules") for the assessment of qualification for disability living allowance (DLA).
  4. Reported plans to repeal the Industrial Injuries Disablement Benefit Scheme. (IIDB)
  5. A proposal for a national help line for ARD sufferers and their families.
  6. Asbestos lung fibre counts at post mortem.
  7. Financial support for victims support groups.
  8. Civil litigation in asbestos related disease.
  9. Engineer's reports required for evidence in civil litigation.
  10. Tracing employer's liability insurance policies.
  11. Memorial to those who have died of asbestos related disease.

1. Duplicate diagnosis of mesothelioma for the purpose of applying for Industrial Injuries Disablement Benefit. (IIDB). Prescribed disease D3.

Mesothelioma is a form of cancer almost exclusively caused by exposure to asbestos dust. It effects the lining of the lungs, chest wall or abdomen. The development of the disease can take up to 30 to 40 years after first being exposed to asbestos dust.

The present system for applying for IIDB is for the person to be examined by a consultant chest physician in consultation with a consultant radiologist who will confirm the diagnosis. The patient then has to apply for the benefit and invariable wait to be visited at home by a Benefit Agency Medical Service (BAMS) doctor to confirm the diagnosis. The home visit is usually necessary due to the poor health of the patient by this time. The latest review of these procedures, together with a complete review of benefits in relation to all Asbestos Related Diseases (ARD), was carried out in 1996 by the Industrial Injuries Advisory Council (IIAC). The report (appendix 1) made some progress by abolishing the 90 days waiting rule for mesothelioma claimants. It went on to express the view that:

"The Council is also concerned to ensure that benefit should be paid as speedily as possible to those who have mesothelioma as a result of exposure to asbestos as an employed earner. Given the evidence referred to above, our preference would be for the scheme to pay benefit to anyone who has a mesothelioma and has been an employed earner. This would speed up payment and streamline processing by avoiding the need for detailed investigation of each individual's employment history, based on the evidence that most cases of mesothelioma are occupationally caused. However, we have been advised that such an approach would be inconsistent with the schemes legal framework. This requires the Secretary of State must be satisfied in relation to a prescribed class of employed earners that the relevant prescribed disease:

  1. ought to be treated, having regard to its causes and incidence and any other relevant consideration, as a risk of their occupation and not as a risk common to all persons; and
  2. Is such that, in the absence of special circumstances the attribution of particular cases to the nature of employment can be established or presumed with reasonable certainty."

(Section 108, Social Security Contributions and Benefits Act 1992)"

The Council went on to recommend the abolishing of the 90 day waiting time rule before benefit is paid and most importantly stating "any occupation involving significant exposure to asbestos" (page 6).

This latter section unfortunately appears to have been misinterpreted by some in the Benefit Agency (BA) as requiring written confirmation from the employer, if still trading, or an independent witness who can verify "significant exposure to asbestos" during the time the applicant worked in the said occupation. Claimants are often asked to trace work colleagues from 20 to 30 years ago in order to provide a letter supporting and verifying the facts. This is also done in occupations were asbestos exposure is well known such as joinery and dockwork. (See app 2)

The present system also puts the onus on the BA Decision-Maker (DM) (Formerly knows as the Adjudicating Officer (AO)) to determine whether the applicant fits the criteria in relation to workplace exposure and employed earner status in order to determine if the applicant qualifies for benefit.

This clearly leads to delays in awarding benefit. In defence of AO's they are only carrying out procedures and many of them have said to us privately that the situation is ridiculous and should be changed. We agree with the Council's point of view calling for all mesothelioma suffers to be granted IIDB and, if necessary, amending the Social Security Act however we take the point of view that the present rules are misinterpreted and some DM, s still require written confirmation from the company concerned or witness to confirm that the applicant has been exposed to higher levels of asbestos than (a level above that commonly found in the air in buildings and the general outdoor environment) Page 6 of Report), thus claimants with occupations having a long history of high asbestos exposure such as building and demolition work are still being asked to produce evidence of high exposure to asbestos dust.

Given the poor prognosis of the disease, 14 to 18 months, we believe this is an unacceptable amount of time for some one who needs funds at a time in life which is more important than on any other occasion.

The opportunity could still remain for the BA to revoke benefit in the case of cryptogenic (of unknown origin) cases were they can prove beyond all reasonable doubt that the condition has not been caused in the course of "employed earner". As an additional safe guard to the BA provision could be made for cases diagnosed by hospital consultant to be referred to the BAMS for review. Dr. Robin Rudd, Chest Consultant, St Bartholomew's Hospital London agrees that IIDB should be paid on diagnosis by the hospital chest consultant. (See app 3).

PROPOSAL

We therefore propose discussion on a system of a Hospital Chest Consultant diagnosis of mesothelioma being sufficient evidence to pay IIDB at a percentage determined by the Consultant subject to a mechanism being provided to the consultant for referral to BAMS in cases of suspected cryptogenic mesotheloma. On diagnosis the Consultant could sign the DS1500 (see section 2) and provide the patient with basic written information on the range of benefits and assistance available.

List of supporting evidence.

  1. Letter from Dr. Robin Rudd, Chest Consultant, St Bartholomew's Hospital, London. (Appendix 3)
  2. Letter from a Benefit Agency Decision-Maker to a sufferer, 8 February 2000 (Appendix 2)
  3. Letter to Mr. Ian Stuart MP from Baroness Hollis of Heigham. 10 December 1999.(Appendix 3a)

2. ASBESTOS RELATED DISAESE SUFFERERS AND THEIR RELASONSHIP WITH HEALTH CARE PROFESSIONALS.
(Submission by Greater Manchester Asbestos Victims Support Group.)

Asbestos Victims Support Groups deal with many sufferers of asbestos related illnesses who have been treated unsatisfactorily by health care professionals in the way in which information about the illness, and the prognosis have been given. The main culprits are doctors, consultants and specialists with nurses and support staff often showing a great deal more concern and human sympathy.

The main complaints from ARD sufferers are that: Doctors/specialists and consultants

Some of these problems are faced by people suffering from cancers and other life threatening and terminal illness. Great strides have been made in the way, for instance, that women with breast cancer are treated. Many of these issues are not due to lack of resources, though pressure on the time of doctors/specialists and consultants may be a contributory factor. Primarily we feel that the issues concern attitude and basic human compassion, which could be relatively easily addressed by developing specific guidelines for doctors/specialists and consultants. Representatives from the Asbestos Victims Support Groups could develop the guidelines, Macmillan nurses and other individuals and organisations as may be helpful. The primary aim is to make doctors/specialists and consultants aware of the impact of their current behaviour on sufferers and their families and to provide clear guidelines on acceptable attitudes and examples of the best practice from those doctors/specialists and consultants who do treat sufferers with compassion and basic human decency.

PROPOSAL

We there fore recommend to the sub-committee that consideration be given to improving the information and communication towards ARD sufferers.

List of supporting evidence.

None.

3. ISSUING OF DS 1500 REPORT FORM. ("SPECIAL RULES") FOR THE ASSESEMENT OF QUALIFICATION FOR DISSABILLITY LIVING ALLOWANCE (DLA).

A DS 1500 is issued by a GP when the patient has been diagnosed with a terminal illness for the purpose of "fast tracking" applications for benefit and in particular DLA. We have come across a small number of cases where a GP has refused to issue this form due to the perceived good health of a patient.

It is normally excepted that a DS 1500 should be issued when, if the patient died within 6 months, it would not be surprising. The report form notes at the beginning of the book of forms, and never seen by the applicant, (appendix 4) states quite clearly;

"WHEN TO FILL IN THIS FORM

Please fill in this form promptly if a patient you are treating for a terminal illness, or their representative, asks you to.

It will not normally be necessary for you to examine the patient. You may use your own knowledge and the patient's records to get the information you need"

Although the form has to be completed by a doctor it is for the purposes of the Benefit Agency to determine eligibility for benefit and is not a statement of prognosis.

All the BA need to know is, is has the applicant been diagnosed with a terminal illness? The BA can then process the claim under BA criteria. While cases of refusal to issue the form are, as far as we can determine, rare, The incidence are bound to increase with the growing amount of people diagnosed with mesothelioma. We take the view that refusals of this nature are probable due to ignorance of the speed a patient can deteriorate with the disease and we would cite one case where the GP refused a Report Form in November 1998 and the patient dying in February 1999. To alleviate this problem it may be advisable for advice to be given in the GP's "green bag" (internal health service post to General Practitioners) as to the likely speed with which mesothelioma can cause a patient to succumb.

PROPOSAL

We therefore suggest the sub-committee consider mechanisms of alerting GP's to this situation.

List of supporting evidence.

a) About the DS 1500 Report Form.(Appendix 4)

4. REPORTED PLANS TO REPEAL THE INDUSTRIAL INJURIES DISABLEMENT BENEFIT SCHEME. (IIDBS)

Government reported plans to repeal IIDB (see app 5) will, if the reports are correct, and if the proposals were implemented, would have an immense impact on present and future ARD sufferer's. The proposals appear to only deal with current accidents and industrial diseases occurring in industry today. It fails to address what system would deal with people who's illness originated from practices of past times. A prime example of this is ARD. Many of the employers in ARD claims, who would be responsible under any new scheme as envisaged according to the article, are in liquidation and impossible to trace. While the proposal to make employers pay for lax health and safety conditions in today's working environment may attract wide spread support, particularly from those who believe errant employers should be made to foot the bill for their misdemeanours on health and safety at work, it fails to identify what mechanisms would replace the present system in relation to ARD claims.

PROPOSAL

We therefore propose if a review/repeal was to take place of the IIDBS the subcommittee should consider what mechanisms should remain, or replace, current systems for the paying of benefit to people who are unable to identify the responsible employer(s) in their particular case. We suggest discussion should take place on the viability of people in this category being paid benefit and the BA being responsible for identifying the employer or insurance company to recoup the benefit paid.

List of supporting evidence.

a) Daily Telegraph, 24 December 1999. ( appendix 5)

5. A PROPOSAL FOR SUPPORT AND EXTENTION OF A NATIONAL HELP LINE FOR ARD SUFFERS AND THEIR FAMILIES.

There is a plethora of national and regional help lines providing advice on a whole host of health related issues. Unfortunately very few are able to give qualitative advice on ARD and in particular mesothelioma. The exception is that provided by the Macmillan Mesothelioma Information Manager, Mrs. Mavis Robinson, based at Cookridge Hospital, Leeds. Mrs Robinson specialises in the care of mesothelioma sufferers and their information and care. She is well known and respected for her work in this field but is only temporarily funded by

Macmillan Cancer Relief. This temporary funded project also involves the training of nurses throughout the country in an attempt to improve future care. The project also runs a telephone advice line which receives calls nation wide and referrals and calls from other well known but more general advice lines eg Cancer Bacup, Cancer Link, NHS Direct etc.

We are not aware of any similar telephone help line providing clinical advice to this very high standard. Mrs Robinson is, we believe, the best and unfortunately only nurse, together with her staff of colleagues in the Macmillan nursing service, providing this expertise which could be extended to cover all mesothelioma cases if the funding for further help lines were provided.

Given the predicted rise in mesothelioma up to the year 2025 of some 7,000 to 10,000 deaths per year from ARD many of which will be from mesothelioma we suggest the sub-committee consider how best to extend this advice service to nurses and victims of asbestos related diseases and on a country wide basis.

Nurse Robinson's funding ends in May 2001 and we believe this valuable resource of clinical expertise should not only continue but expand to all those in need.

PROPOSAL

We therefore suggest the sub-committee consider funding clinical help lines on the same basis as that currently provided by Nurse Mavis Robinson of Cookridge Hospital, Leeds.

List of supporting evidence.

  1. Statement by Nurse Mavis Robinson 15 February 2000 (appendix 6)
  2. Letter from Department of Health to Mr. Ian Stewart MP, 25 February 2000.(app 7, Page 2)

6. PROBLEMS WITH ASBESTOS LUNG FIBRE COUNTS AT POST MORTEM.

Asbestos lung fibre counts are taken at autopsy to assist in determining the cause of death when it is suspected the deceased has died from, or the death has been contributed to by, exposure to asbestos. Pathologist's may take samples of lung tissue and send them to a laboratory for Electron Microscope analysis to determine the amount and type of asbestos fibre. These analytical procedures are to say the least controversial and one Coroner, Mr. Andr'e J. A. Rebello, HM Coroner for Liverpool, has stated he believes if the deceased had a malignant pleural mesothelioma and has a relevant occupational history for the relevant time even with a low asbestos fibre count, on balance, it will be accepted as a death due to industrial disease.

Dr. Nancy Tait, MBE, Director of the Occupational and Environmental Disease Association (OEDA) has submitted evidence in support of her concerns in relation to the Environmental Lung Disease Group (Llandough Hospital (ELDRG). Dr. Tait raises the issue of ELDRG lung fibre analysis reports being used by Coroners to give verdicts of death by natural causes in cases where exposure to asbestos has been recorded. It is recorded in her evidence;

"ELDRG has failed to respond to requests that they give references for published studies of satisfactory control cohorts"

As the committee will see from Dr. Tait's evidence this issue is quite complex and we are unable to go into intricate detail in this type of submission. We would ask the sub-committee to seek the views of Mr. Rebello and Dr. Tait when reviewing this aspect of ARD

PROPOSAL

We therefore ask the sub-committee to consider this matter together with evidence from Mr. Rebello and Dr. Tait. We suggest the sub-committee write Dr. R. Gibbs of ELDRG and request the data referred to in Dr. Tait's evidence.

List of supporting evidence.

a) Letter from Dr. Nancy Tait, MBE, with enclosures. (Appendix 8)

7. FINANCIAL SUPPORT FOR VICTIMS SUPPORT GROUPS.

There are a number of groups and individuals working in support of ARD sufferers who are funded by various agencies on short-term basis by Local Authorities, Lottery Charities Board etc. We suggest discussion on a more coherent long-term system of funding can be identified.

PROPOSAL

We therefore suggest the sub-committee discuss future funding of asbestos support groups providing advice and support for ARD sufferers and their families.

List of supporting evidence

None

8. CIVIL LITIGATION IN ASBESTOS RELATED DISEASE.

The Woolf Reforms brought about substantial changes in the way civil litigation is carried out. The reforms are contained in the Civil Proceedings Rules (CPR). Many complex issues exist in this area and the new procedures are still "bedding in". More new procedures are to come into force on 1 April this year including the virtual scrapping of Legal Aid for ARD cases. Because of the complexity of all the issues we have attached a paper (appendix 9 ) drafted for the Bradford Victims of Asbestos Support Group by Mr. Adrian Budgen, a Partner with Irwin Mitchell Solicitors which discusses the main issues involved.

We therefore ask the sub-committee to consider the paper when considering civil litigation.

List of supporting evidence

a) Paper Civil Litigation by Mr. Adrian Budgen. (Appendix 9)

9. ENGINEER'S REPORTS REQUIRED FOR EVIDENCE IN CIVIL LITIGATION.

During the course of preparing a civil case for compensation it is often required that an engineer's report is produced to identify the working conditions and current legislation at the time of exposure which the person has worked in. These reports can cost between £500 and £900. They are often repeated reports detailing well-known working conditions, i.e. dock work, construction industry etc. We believe these reports are unnecessary in many cases, as the facts are already well known. This issue was raised at an earlier exploratory meeting and Mr. Ian Stewart MP raised the matter with the Lord Chancellor's Office. The reply (Appendix 10) indicates support for our point of view and we will have to wait and see if the common sense approach outlined in the letter is carried out in practice. We believe publicity should be given to this point of view and hopefully all concerned will concur with accepting the well-known working conditions in particular industries.

Insurance companies would appear to call for an engineer's report, paid for by the litigant and recouped on successful completion of the case being settled in favour of the sufferer, in many cases as a way of arguing their case of not being responsible. If engineer's reports were only commissioned for the reasons suggested in the Lord Chancellor's departments letter we believe considerable savings could be made by all concerned with of course the exception of the companies carrying out the work (see also Civil Litigation App 9, Section 5 Paragraph 3).

PROPOSAL

We therefore suggest a debate on the most efficient way of publicising the views contained in the Lord Chancellor's Department's letter through out the field of personal injury litigation.

List of supporting evidence.

  1. Paper on Civil Litigation (Appendix 9)
  2. Lord Chancellor's Department letter 18 February 2000. (Appendix 10)

10. TRACING EMPLOYERS LIABILITY INSURANCE POLICIES.
Paper by Tyneside Occupational Health Project.

A common problem faced by a number of ARD sufferers when taking civil damages action is the difficult and often impossible task, of tracing the insurance company with responsibility for paying compensation. This is often the case in

ARD cases where exposure has taken place decades before the onset of symptoms. The government have gone some way in easing this problem by producing a Code of Practice published on 1 November 1999 in conjunction with the Association of British Insurers and the Non-Marine Association at Lloyd's. (Appendix 11). The COP has moved some way forward in introducing a time limit of 20 days for insurers to respond to inquiries (usually solicitors acting on behalf of a client) together with laying down procedures for handling claims. The ultimate sanction of the new procedures is:

"DETR will report to the Review Body on any complaint which it has found to be justified, and where the insurer or Syndicate has failed to provide a remedy within one calendar month of being notified of the DETR's view.

DETR will recommend that the Review Body draw attention to the case in its next Annual Statement, and that it name the insurer or Syndicate concerned. The Review Body's Annual Statement will be published by DETR".

While we believe the COP makes limited progress it could hardly be seen as a draconian measure by any stretch of the imagination. If we are sincere in addressing this problem we must be more innovative than the COP and look at similar schemes to solve the problem. We believe a fairer and efficient system would be to set up a similar scheme as the Motor Insurance Bureaux. The ARD bureaux could be funded by all the insurance companies presently registered in the UK therefore eliminating any need for one particular sector to bear the full burden of the un-met claims. We are aware some insurance companies may argue they are not liable having not operated in a particular sector, however given the current mergers within the insurance industry (Appendix 11a,11c) it is extremely difficult, if not impossible, to identify a company who has never insured in these circumstances. We do not believe this should be a bottomless pit of resources funded by the insurance companies, rather a safety net for those unfortunate enough to find themselves in the harrowing position of having to apply for government compensation.

If the ARD bureaux were set up it could also have investigative powers to examine insurance company records to ascertain if a policy was applicable before making an award from the fund. This would avoid the "bottomless pit" syndrome. The present system has no financial incentive to insurance companies to locate their responsibilities other than the sanction of being named in a DETR report, an occasion which is most unlikely to attract mass media attention with attendant bad publicity which may result in a down turn in the companies fortunes.

The ARD bureaux could be staffed by those possessing expertise drawn from the insurance world who have the skills to locate files for this purpose. There would be a financial incentive for the staff to locate the appropriate policy to ensure the fund was not drawn upon without good reason. The bureaux, while working closely with insurance companies, should be separate and possible under the present DETR 79 administration with the extra very little cost born by the central fund. It would of course have cost advantageous from the government's viewpoint in reducing, if not eliminating claims to the 79 Act (government scheme for those unable to take civil actions) on ARD. Insurance companies would we believe welcome the system with its centralisation of claims of this sort.

We believe it is of utmost importance the ARD bureaux is independent of insurance company influence while working closely with them and therefore we suggest discussion to consider using the present government department i.e. the 79 Act administration for administration.

It has also been suggested that the bureaux could be extended to cover similar situations in the whole of personal injury litigation. These are far reaching proposals however given the predictions by Professor Julian Peto, Royal Institute for Cancer Research, who has predicted a rise in ARD deaths to some 7,000 to 10,000 per year up to the year 2025 we believe these proposals merit serious consideration.

Registration of company's insurance details on annual returns to Companies House.

It is remarkable that current legislation fails to ensure companies do not have to register their insurance company details on their annual returns to Companies House. In order that this problem is not repeated for future generations amending Company Law should rectify this situation. A review is to take place this year and the DTI will be publishing a Consultation Document asking for views on the whole aspect of reforming Company Law. This opportunity may be used for this purpose.

PROPOSAL

We therefore propose a debate on the setting up of an Asbestos Related Disease Bureaux for the compensation of claimants unable to trace an individual insurance company. The bureaux should be an independent body under government control and funded by UK based insurance companies. Also, We suggest debate should take place on whether Company Law should be amended to ensure companies provide details of their insurers in their annual return to Companies House.

List of supporting evidence.
Code of Practice for Tracing Employers' Liability Insurance Policies.
(Appendix 11)
Observer article, 20-2-2000. (Appendix 11a)
Letter to Mr. Peter Kilfoyle MP from the DTI. 17 January 2000.( App 11b)
Guardian, 30-12-99 (Appendix 11c)

11. PROPOSED MEMORIAL TO THOSE WHO HAVE DIED OF ASBESTOS RELATED DISEASE.

Dr. Nancy Tait MBE in her submission has asked the sub-committee to consider a request she received from a widow of a man who had died of mesothelioma for a memorial to all those who have died of the biggest industrial disease known to man. The consultative meeting held on 18 February with asbestos victims support groups fully endorsed the proposal.

PROPOSAL

We would ask the sub-committee to consider how funding for this a memorial may be obtained.

List of supporting evidence.

None.