5 October 2020 Edition 314
BC DISEASE NEWS A WEEKLY DISEASE UPDATE
CONTENTS
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Welcome Welcome PAGE 3
Cohabitees of Deceaseds to Qualify Welcome to this week’s edition of BC Disease News. for Fatal Accident Bereavement Award from 6 October In this issue, there is a common theme of imminent/anticipated legislative and procedural reform, affecting UK jurisdictions. We report that the list of eligible PAGE 4 applicants for ‘bereavement’ damages will lengthen within days, that new costs
management and disclosure requirements are now in effect, that the Ministry of 122nd UPDATE TO PRACTICE DIRECTIONS: Defence (MoD) is getting ever closer to contesting personal injury claims brought Novel Precedent T in Force to Facilitate ‘Variation Costs’, as Expert Witnesses 6-years after the ‘date of knowledge’ and that the recoupment of NHS charges Accede to Risk of Civil Contempt (for treating ‘industrial diseases’) from negligent employers could be off the cards, Proceedings in Rephrased Statement due to lack of incentive. of Truth We also announce the details of two significant claimant firm acquisitions; firstly PAGE 6 of Heptonstalls Solicitors, by HH Legal and secondly of Jigsaw Law, by Slater and Gordon. Proposed Legislation, Which
Strengthens the MoD’s Position on Limitation in Military PI Claims, Survives Our final article of this issue examines the existence of a relationship between 2nd Reading in Commons permanent hair dye application and cancer, in lieu of a recently published paper, sourced in the British Medical Journal. We investigate whether or not the Faculty of Advocates Remarks that the supposed risks faced by personal users and workers are valid. Scottish Bill, Devised to Recover the NHS’ Costs of Treating Industrial Disease Any comments or feedback can be sent to Boris Cetnik or Charlotte Owen. Victims, Lacks ‘Incentivising Effect’
As always, warmest regards to all. PAGE 8
Sold Out of Administration, Heptonstalls Solicitors is Pipped to Penetrate List of SUBJECTS ‘Top 200 Law Firms’ Bereavement Damages and the Fatal Accidents Act 1976 – New Precedent T and Slater and Gordon Acquires PI New Expert Witness Statement of Truth – Limiting Section 33 Discretion Through Specialist, Jigsaw Law, for Undisclosed Operations (Service Personnel and Veterans) Bill – Faculty of Advocates’ Opinions Fee on Liability for NHS Charges (Treatment of Industrial Disease) Scotland Bill – HH
Legal Acquires Heptonstalls Solicitors – Slater and Gordon Acquires Jigsaw Law – PAGE 9 BOHS Responds to Silica Report Commissioned by All Party Parliamentary Group
BOHS Calls for Swifter Reaction to on Respiratory Health – MAGS Report on Healthcare Workers with Mesothelioma Report Which Dubbed Silica ‘The Next – Permanent Hair Dye Use and Cancer. Asbestos’
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Mesothelioma UK Study on Healthcare Workers Affected by Mesothelioma Sparks Broader Discussion on Asbestos Exposure Risks in Publicly Owned Buildings
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Solidifying Tenuous Links Between Repeated Hair Dye Exposure and Cancer – What are the Personal and Professional Risks?
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Cohabitees of Deceaseds to Qualify for Fatal Accident Bereavement Award from 6 October
Tomorrow, the Fatal Accidents Act 1976 (Remedial) Order 2020 will enter into force.
Back in May of last year (here), we reported that the Ministry of Justice (MoJ) had published A proposal for a Remedial Order to amend the Fatal Accidents Act 1976.
The purpose of the draft Remedial Order, contained within the proposal, was to adjust the restrictive wording of s.1A(2) of the Fatal Accidents Act 1976, which Sir Terence Etherton MR had deemed, in the case of Smith v Lancashire Teaching Hospitals NHS Foundation Trust & Ors (Rev 2) [2017] EWCA Civ 1916, to be incompatible with Articles 8 (right to respect for private and family life) and 14 (prohibition of discrimination) of the European Convention on Human Rights (ECHR), in accordance with s.4 of the Human Rights Act (HRA) 1998.
The claimant, in Smith, was a cohabitee of the deceased and could not be defined as an eligible applicant for bereavement damages, under the existing s.1A(2) list.
As such, the new statutory instrument was prepared to broaden s.1A(2) and enable ‘a claimant who cohabited with the deceased person for a period of at least two years immediately prior to the death’ to bring a claim for damages for ‘bereavement’. It was also foreseen that multiple cohabitants could qualify and under these circumstances, the award would be divided equally.
N.B. The fixed compensatory sum for bereavement was increased to £15,120 for claims with a cause of action (i.e. date of death) accruing on or after 1 May 2020, by implementation of The Damages for Bereavement (Variation of Sum) (England and Wales) Order 2020 – we notified our readers of this in edition 306 of BC Disease News (here). For claims with pre-dating causes of action, the sum remains at £12,980.
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Of course, the fact that a definitive date of nd enforcement has now been officially set 122 UPDATE TO PRACTICE DIRECTIONS: Novel means that a wider review of the Precedent T in Force to Facilitate ‘Variation Costs’, ‘bereavement’ damages regime, which had been encouraged by the Joint as Expert Witnesses Accede to Risk of Civil Committee on Human Rights (in their 1st report and 2nd report, dated May 2019 and Contempt Proceedings in Rephrased Statement of May 2020, respectively), is not on the cards. Such reform would require primary Truth legislation. Since 1 October 2020, The Civil Procedure (Amendment No. 3) Rules 2020 have been Thus, from 6 October, the incompatibility enforced and with them, the new costs budgeting Precedent T. issue looming over the 1976 Act should be resolved and this is ultimately expected to Section 4 of the Statutory Instrument introduces a new CPR 3.15A: ‘Revision and variation of have a ‘small’ financial impact on paying costs budgets on account of significant developments (“variation costs”)’. parties.
What is unclear, moving forwards, is whether the Government was right to declare that ‘the existing provisions on bereavement damages are discriminatory’, not least because they were ‘only ever intended to … [allow] … a token payment payable to a limited group of people’, or whether the Joint Committee was correct to warn that without extended reform, s.1A is ‘still vulnerable to human rights challenges’, e.g. from: • Cohabitees who were in a permanent’ and ‘loyal’ relationship lasting less than 2- years; • Non-cohabiting partners, who planned not to cohabit until they were married; • Cohabitees stricken by the grievance of divorce; • Fathers grieving the loss of children born outside of wedlock; • Parents grieving the loss of adult or married children; • Children grieving the loss of a parent; and • Siblings grieving the loss of a brother or sister.
CPR 3.15A revises the old procedure covering updates to Precedent H costs budgets, in instances where there are ‘significant developments’ during the course of litigation.
The former position on budget variation had been informed by the ruling of Chief Master Marsh, in the case of Sharp v Blank & Ors [2017] EWHC 3390 (Ch) and was articulated through an expired iteration of the Costs Management Practice Direction (PD) 3E, though precedent was known to have been inconsistently practiced:1
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Having scrapped para 7.6, it is now mandatory and proper procedure to use Precedent T, in the event that ‘variation costs’ are accrued. This is made clear by CPR 3.15A and updated PD 3E wording (pasted from the Schedule to the 122nd Practice Direction Update):
In 2019, the Association of Costs Lawyers (ACL) surveyed practitioners and found that 24% of respondents claimed to always stick to their budgets, while 21% admitted to always exceeding what is budgeted and 45% sometimes exceed budgeted costs. Meanwhile, 19% of costs lawyers have never seen an application to revise a budget.2
These statistics may dramatically change moving forwards, with ACL Chair, Claire Green, conceding that courts will almost certainly look less favourably on parties that go over budget without attempting to adhere to the reworded Rules and Practice Direction.
Urging solicitors to ‘act conservatively at this stage and not take any risks’, Ms. Green highlighted that a series of court rulings will be necessary to define, for example, ‘significant developments’ and ‘promptly’, in the context of CPR 3.15A.
Nonetheless, speaking at the Costs Law Reports Conference last month, Queen’s Bench Master Victoria McCloud gave some indication as to what these undefined terms might imply.
The Master cautioned that ‘prompt’ would foreseeably be interpreted ‘strictly’ and without much room for excuse, while ‘significant developments’ would probably comprehend a scenario wherein a party only envisages exceeding their budget by a small amount.
What is more, she signalled that courts would take an ‘unsympathetic’ view of a party approaching the court for a revision without first entering into discussions with their opponent.
Transitioning from costs to expert witnesses, we now move on to discuss another important change comprised in the 122nd Practice Direction Update.
The judiciary’s intensifying focus on claims fraud and dishonesty over the past couple of years has only served to bolster the reputation of civil contempt proceedings.
As a consequence, the Master of the Rolls and the Lord Chancellor have consented to the Civil Procedure Rule Committee’s (CPRC) modification of PD 35 para 3.3, so that experts are now (since 1 October) forced to produce more extensive signed statements of truth that recognise the risk of contempt applications being made against them, should applicants accuse them of having been dishonest.
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Earlier this year, barrister and commentator, Gordon Exall, forewarned the significance of this extended expert declaration:
‘There is nothing to prevent a party from adopting this wording now. Most reports served at this time, in most civil proceedings, will not reach court until after October 1st. There is no suggestion that reports using the “old” declaration will be nugatory, however it will be prudent to point out the new requirements to all experts in ongoing cases’.3
Proposed Legislation, Which Strengthens the MoD’s Position on Limitation in Military PI Claims, Survives 2nd Reading in Commons
On 23 September 2020, the Operations (Service Personnel and Veterans) Bill was laid before the Parliament for its 2nd reading.
As we reported, in edition 311 of BC Disease News (here), Part 2 of the Bill amends s.33 of the Limitation Act 1980 to instigate a 6-year long- stop for personal injury/fatal claims (e.g. in respect of post-traumatic stress disorder, mesothelioma, noise-induced hearing loss, etc.), which relate to overseas operations with the armed forces (‘overseas armed forces actions’).
Assuming that the Bill is eventually receives Royal Assent, the Ministry of Defence (MoD) would have extended rights to limit the court’s discretionary power to disapply time limits in such civil actions advanced by (ex-)service personnel.
Essentially, the final opportunity for a military clamant to commence litigation of this kind would arise up to 3-years after the limitation period is deemed to have expired.
In our previous article, we analysed the views of SNP Minister, Carol Monaghan, who described the Bill as an ‘attack’ on personnel and veterans in the House of Commons, on 16 July.
Since then, the Law Society has warned that a constriction of s.33 discretion may lead to ‘gross injustice’ for affected prospective claimants, with Vice President, David Greene, having forecasted that:4
‘Only the MoD stands to gain from the proposed time limit on compensation claims, as it would avoid having to pay court-awarded damages and costs. If claims are blocked by the bill the MoD would also be less likely to learn from past mistakes and improve practices’.
In spite of admonition, the Bill is expected to pass through the Commons ‘comfortably’. What scrutiny the Bill faces in the Lords is yet to be seen.
Faculty of Advocates Remarks that the Scottish Bill, Devised to Recover the NHS’ Costs of Treating Industrial Disease Victims, Lacks ‘Incentivising Effect’
Avid readers of BC Disease News will be aware of the fact that we have been closely following the progress of the Liability for NHS Charges (Treatment of Industrial Disease) Scotland Bill through the devolved Scottish Parliament, since the beginning of this year.
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The Member’s Bill, which was first introduced on 9 March 2020, seeks to amend s.150 of the Most recently, in edition 311 (here), we Health and Social Care (Community Health and Standards) Act 2003. reported that the Health and Sport Committee had made a public ‘call for As presently drafted, the 2003 Act expressly states that compensating parties are not liable views’ to assist with the 1st stage of for NHS expenditure on treatment for patients who have suffered diseases. legislative scrutiny, which it had been appointed to conduct.
On 22 September (8-days before the ‘call’ ends), the Faculty of Advocates submitted its Responses to the substance and practical effect of the Bill, which we present below.5
Question 1: How with the Bill lead to improved working conditions and health and safety practices in workplaces?
With regards to the 1st question, the Faculty stated that improved working conditions and health and safety practices were already being incentivised by awards of
damages for personal injury and criminal Enactment of the Bill would extend liability beyond ‘injuries’ to ‘industrial diseases’ (e.g. sanctions for breaches of statutory duty, asbestos-related conditions, skin conditions, respiratory conditions, deafness, and asthma), under the Health and Safety at Work Act thereby allowing the state to recover additionally incurred charges. 1974. As a result, it had ‘no reason to believe that the Bill will have any additional incentivising effect’.
Question 2: How will the Bill help prevent industrial diseases in the future?
On the 2nd question, it was the Faculty’s view that, since the availability of civil and criminal proceedings is intended (at least in part) to prevent employees from developing or contracting industrial diseases, it could not necessarily be expected that the Bill would lead to more effective pursuance of this objective.
Question 3(i): What impact will the Bill have on individuals?
Having assumed that this question was targeting ‘employees’, the Faculty considered that it had already covered the Bill’s impact in the 1st and 2nd questions , namely that there would foreseeably be no additional benefit beyond what may be achieved through civil litigation or criminal prosecution.
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Question 3(ii): What impact will the Bill have employee and has also held positions at Roberts Jackson and Leo Abse & Cohen. on NHS boards? As a result of this acquisition, 100 jobs have been salvaged and Heptonstalls’ Head of Though not in a position to quantify the Industrial Disease, Shane Hensman, has been appointed as a director of HH Legal. exact impact of the Bill on the NHS (predominantly money-related), the Mr. Weir insists that he plans to build a ‘sustainable, inclusive, and innovative law firm’ that Faculty accepts that it would relieve some provides a solution to impending low-value road-traffic accident (RTA) reforms. Boasting of the pressures that the health service take ‘pretty ambitious growth plans’, he has sensationally predicted that HH Legal (trading as on when it takes care of victims with a Heptonstalls) could be ranked inside the top 200 law firms, in respect of revenue, within the range of industrial diseases. space of 1-year.
Question 3(iii): What impact will the Bill have That being said, he is still unconvinced that the whiplash reforms will materialise by the latest on workplaces? April 2021 deadline.
As an extension of question 3(i), the Legal Futures was informed that Mr. Weir’s original plan had been to take over HH Legal and Faculty’s answer to this question was simply join a panel of law firms (capped at 70 firms), called the ‘Call Brian’ panel. its response to question 3(i). ‘Call Brian’, which Mr. Hensman described as ‘a bit of a dream’, is an automated personal Question 3(iv): What impact will the Bill have injury claims tool which carries out compliant ID checks, creates retainer documents, sends on the insurance industry? chaser messages to clients, schedules medical appointments through the MedCo system and prepares Stage 2 settlement packs for prospective completion of claims. In short, it is Questions 3(ii) and 3(iv) represent a tug of an integrated software product designed to increase cost effectiveness, replacing ‘90% of war and as the obvious loser of this game what firms do’. (initiated by the new legislation), the Faculty acknowledged that the financial burden When, in June 2020, Mr. Weir discovered that a deal had been struck with ‘Call Brian’, such on insurance companies would rise in that all participating firms would be required to funnel their cases through Heptonstalls, as direct correlation with the NHS’ burden the sole operating firm, he envisaged an ‘attractive prospect’ that was ‘too good an falling. The extent to which the fiscal burden opportunity to miss’.7 of each party would shift is, however, an unknown quantity in the absence of a full Under new ownership, Heptonstalls will sustain its pre-arranged relationship with ‘Call Brian’, impact assessment. sharing all fees with referring firms 50/50. All users will be charged 25% of their damages under a conditional fee agreement and Heptonstalls will take over conduct on all cases that fall out of the dedicated portal. Sold Out of Administration, ‘Confident’ that ‘Call Brian’ will not miss ‘subtle injuries’ that could lead to a departure from the portal, one wonders whether the corporate collaboration is mere coincidence. Heptonstalls Solicitors is In edition 293 of BC Disease News (here), we reported that motor insurers had seen an Pipped to Penetrate List unexpected rise in run-of-the-mill RTA claims that seek damages for more complex injuries (specifically tinnitus), in addition to conventional soft tissue injuries. of ‘Top 200 Law Firms’ Did Heptonstalls capitalise on this opportunity because it believed that it would have Hampered by the COVID-19 claims climate exposure to large numbers of claims that could be exempted from the forthcoming small and consequent cash flow issues, claims track reforms and made lucrative? Only time will tell. Heptonstalls Solicitors had, until very recently, been in administration. Slater and Gordon Acquires PI Specialist, Jigsaw However, a few weeks ago, in a pre-pack Law, for Undisclosed Fee sale, the claimant firm, specialising in industrial disease, was procured by HH Legal, which was itself bought as a ‘near- Notwithstanding poor financial performance in the accounting year up to December 2019 8 shell’ company, earlier this summer.6 (Group turnover fell 13% to £193 million ), claimant personal injury law firm, Slater and Gordon (S&G), has taken steps, in recent days, to bring about an ‘immediate and significant HH Legal is owned by solicitor, Dominic expansion’ of its business. Weir, who is a former Heptonstalls
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BOHS Calls for Swifter Reaction to Report Which Dubbed Silica ‘The Next Asbestos’
In edition 307 of BC Disease News (here), we examined the contents of a report on the dangers of respirable crystalline silica dust inhalation, which had been commissioned by the All-Party Parliamentary Group (APPG) on Respiratory Health.
‘Silica - the next asbestos?’ started a ‘long- On 29 September 2020, multiple legal news outlets divulged that S&G had acquired overdue conversation’, between alternative business structure, Jigsaw Law (part of the Kindertons Group – an accident Government, Parliament, health bodies management specialist), from medico-legal and insurance services business, ExamWorks.9 and the construction industry, about the
currently unknown scale of silicosis in the This announcement was precursed by an earlier announcement, in July, that ExamWorks UK, especially among its 2.2 million-strong would handle S&G’s medical reporting and rehabilitation requirements. A deal has since construction workforce (1.4 million been signed to cement the hedge fund-owned business as its preferred legal services employed workers and 0.85 million self- supplier. employed workers), though risks also exists
for kitchen worktop fitters, textile (denim) At present, no value has been attached to the sale of personal injury specialising outfit, machine operators and other professionals Jigsaw Law, but its latest Companies House filings detail annual turnover of £5.3 million and – for more information, see the recent operating profit of £1.2 million.10 editorial in the CHEST journal.11
At the time of initial publication, the British Occupational Hygiene Society (BOHS) ‘welcomed’ and ‘applauded’ the report for its ‘strong recommendations’ calling for improvements to the provision of occupational health services.12 These were as follows: • To make silicosis a reportable condition for those who are currently in work and exposed to RCS, under The Reporting of Injuries, Diseases, and Dangerous Occurrences Regulations (RIDDOR) 2013. • To amend The Health Protection (Notification) Regulations 2010 to make silicosis notifiable through Public Health England, thereby creating a compulsory national silicosis register – in edition 283 (here), we reported that Unite and S&G’s Chief Executive, David Whitmore, has stated on behalf of the firm that it will continue Thompsons Solicitors had created to look for further opportunities to enhance its standing in the personal injury sector. their own silica dust register. • To develop and implement a targeted industry awareness
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campaign for those at risk of In light of this, BOHS wrote a letter to She was diagnosed with pleural developing silicosis. ministerial members of the APPG in mesothelioma in January 2017 and, having • To allow workers to hold their own September, exhorting them to follow-up on dedicated the remainder of her life to occupational health records to recommendations made 6-months ago. sharing her personal encounter with the encourage workers to make Further, to take encouragement from disease and promoting developmental associations between symptoms counterparts in the Australian legislature, research, she died in 2019, aged 44. and exposures. who most recently enriched their health • To merge occupational health surveillance practices by increasing In Dr. Portman’s memory, MAGS was services into GP surgeries to allow mandatory chest X-ray capacity for miners designed with the main aim of developing for occupational histories to be and quarry workers – this was discussed in a ‘critical account of the experiences of 13 accounted for where work-related edition 312 (here). presentation, diagnosis, treatment and ill health is suspected. care for healthcare staff [and other • To introduce new Governmental Chief Executive, Kevin Bampton, agreed asbestos-related conditions] with health and safety regulations that MPs had ‘recognised the urgency of mesothelioma’. [outside of the Control of the issue’, but was now requesting that they Substances Hazardous to Health ‘follow through’ on their pledges This account was based on 3 stages of Regulations 2002 (COSHH)] ‘immediately’, so that excess deaths and study, from which recommendations were specifically relating to the control long-term illnesses may be prevented. drawn. of respirable crystalline silica (RCS), so that it is afforded the BOHS estimates that every year, there are Stage 1: Rapid Literature Review same level of protection as approximately 500 UK construction workers asbestos. deaths from silicosis and approximately The rapid literature review was performed in 4,000 deaths from chronic obstructive August 2019. Given that an existing • To investigate (through the NHS) a pulmonary disease (COPD). literature review, published in 2010, had screening programme for those already evaluated 13 relevant articles exposed to RCS. Kelvin Williams, President of the Society, produced from 1980 to 2008, the focus of • To provide access to believes that investing in preventative MAGS was literature submitted from 2008 to occupational health services for measures, such as those classified in the 2019.14 RCS-generating industries. APPG Report, would be ‘undoubtedly • To halve the workplace exposure cheaper, easier and better than trying to In total, there were 10 pertinent items that limit (WEL) for RCS in the UK from cure these illnesses’ associated with covered experiences of healthcare staff 3 3 0.1mg/m to 0.05mg/m (see the industrial exposures. with mesothelioma (focusing on doctors th 4 edition of EH40/2005), in line and nurses, but not other healthcare with the 2003 recommended professionals/staff and excluding dentists exposure standard from the Mesothelioma UK Study and dental technicians). Scientific Committee on on Healthcare Workers Occupation Exposure Limits These articles equivocally conveyed that (SCOEL), and ensure that statutory Affected by healthcare professionals with monitoring requirements are in mesothelioma report ‘experiences shared place to reduce over-exposure. Mesothelioma Sparks with other patients with the same condition, • To implement Health and Safety physically and especially emotionally’, Executive (HSE) requirements, Broader Discussion on which is why they should be treated in a compelling compulsory use of Asbestos Exposure Risks ‘patient first, professional second’ manner. masks, dust extraction and water They also recounted social issues relating to suppression, along with annual in Publicly Owned the change in role from professional reporting of inspection and clinician to patient, often seeking to compliance levels. Buildings maintain control of their care by, for • To increase HSE resources to raise example, using colleagues to make the volume of on-site inspections The Healthcare Staff Mesothelioma progress via unofficial channels. Some are of building contractors of all sizes. Asbestos Guidance Study (MAGS) is a also affected by the phenomenon of Mesothelioma UK-funded project that was clinical nihilism. However, the Government is still yet to fully conducted by the University of Sheffield. address the report. The acronym, MAGS, was inspired by pioneering clinician, Dr. Mags Portman.
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Stage 2: Freedom of Information (FOI) In future, the Sheffield University researchers suggest that regular annual FOI requests could Request be tendered to track the ongoing pattern of claims, as current methods of predicting mesothelioma and asbestos-related disease levels are underestimating the risk and are The function of the FOI request was to ‘clearly not fit for purpose’: gather up-to-date information on mesothelioma case numbers among ‘… if the number of claims carries on rising this would support the assertion that cases of healthcare staff. mesothelioma have not peaked; it would also support the argument that hospitals are not low-risk environments’. It was sent to NHS Resolution (the body that deals with litigation pursued against the Stage 3: Interviews NHS, e.g. claims in negligence) on 3 September 2019 and read as follows: Albeit on a small scale, 9 semi-structured interviews were set up with (partners of) former healthcare staff about their experiences with malignant mesothelioma, as part of the final ‘I would like to know about civil law cases stage of MAGS – this is the first example of specific research of this kind and represented of negligence that have been taken a wider range of staff than that found in the literature review. against the NHS with regard to current or former NHS employees who have Table – Interviewee Characteristics: developed mesothelioma and have sued because they believe it to be due to asbestos exposure at work. I would be interested to know cases in the last 15 years (or less if information is available but not for that period).
Any information would be helpful but, if possible, I’d like to know, for each year: i) Number of cases received; ii) Number of cases settled in favour of the employee, number of cases with out-of-court settlement and number of cases settled in favour of the NHS.
I would also like to know (again, if information is available): iv) employee type; v) employee gender’.
What NHS Resolution’s response revealed was that, between 2004 and 2017, there The discussion section of the Report echoed many of the conclusions arrived at in the had been 961 mesothelioma claims (with literature review, notably concerning the physical and mental impacts of diagnosis and allegations of negligent asbestos exposure) treatment. brought against the health service. Of these
961 claims, 553 were successful, at a cost Higher levels of clinical understanding, coupled with nihilistic tendencies, can result in (compensation payouts only) of more profound feelings, though these characteristics were more prevalent in senior £19,565,492. The average settlement doctors than in nurses. Indeed, ‘interviewee #6’ had no knowledge of mesothelioma figure-per-claim was therefore £35,381. whatsoever.
Compare and contrast this against an older Where healthcare workers are marked by asbestos-related disease, it is advised that they BBC FOI request, which ascertained that join support groups to help fellow patients and offset their suffering. 182 successful asbestos-related disease claims (a broader category than the FOI in Recommendations MAGS), received between January 2013 and December 2016, had yielded Stemming from the 3-stage review, the following recommendations were made (see damages awards of £25,824-per-claim.15 phrases emboldened):
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‘5) Awareness of asbestos risk should be a. Regular testing of healthcare settings for asbestos using new techniques that can detect added to the mandatory training for new far lower levels than was possible when the limits set by the Asbestos Regulations 1969 came members of NHS staff. into force. b. Track: where asbestos is found, interventions to manage to be implemented, such as 6) Those staff leaving the NHS should be provision of protective equipment and removal of the asbestos. reminded that asbestos exists in most NHS c. Prevention: through education of managers and health carers, as set out in points 5 and premises; they should therefore be aware 6 above’. that mesothelioma and other asbestos- related illness is a possibility. In wider Head of Mesothelioma UK’s Services Division, Liz Darlison, assures that the charity will push education, particularly of GPs, the idea that MAGS outcomes into the public domain, with a view to increasing awareness of asbestos hospital are low-risk environments should exposure risk in the healthcare setting.16 be questioned; mesothelioma should not be discounted in NHS and former NHS staff. Ms. Darlison also recognises, as we have (in the course of BC Disease News articles), that … asbestos does not only remain in situ in hospitals, but also in schools. In fact, mesothelioma mortality in teachers, compared to the general population, is 4-fold, where mesothelioma 8) It is, however, important to improve the mortality in nurses is 2-fold. quantitative data concerning how much mesothelioma there is in the population of We reported, in edition 305 (here), that Mesothelioma UK had established a legal panel of current and former NHS staff. The ONS data 8 disease specialist claimant law firms. It would therefore be unsurprising if MAGS were to is a huge underestimate. As such: instigate a wider discussion on asbestos in public buildings and/or increase volumes of a. It would be worth repeating the FOI claims met by NHS Resolution and others. request put in for this report on an annual basis, asking for the number of cases taken by current and former NHS staff in the Solidifying Tenuous Links Between Repeated Hair previous year. Dye Exposure and Cancer – What are the Personal b. In addition, the request for a breakdown of the figures by category of staff over a and Professional Risks? longer period (to comply with data protection concerns) should be repeated Across the US and Europe, statistics suggest that 50% to 80% of women and 10% of men until a clear answer is given by the ONS. This over the age of 40 have used hair dye products consistently, over a number of decades. recommendation would require financial back-up of approximately £1,200. c. Any figure obtained through this route would miss those who had not proceeded with legal cases. An estimate of this might be gained through approaching legal firms and asking them for the proportion of NHS mesothelioma cases they proceed with from all those who approach them. d. Even this figure would miss those who do not approach legal firms in the first place. It is difficult to think of how a figure for this group could be obtained.
9) i) The large extent of asbestos contamination in healthcare settings is now Source: PxHere (22 February 2017) well established by research. ii) The present report has highlighted other data showing The International Agency for Research on Cancer (IARC) classifies occupational exposure that this contamination is causing to hair dyes as ‘probably carcinogenic to humans’ (Group 2A) and personal use of hair mesothelioma amongst healthcare workers dyes as ‘unclassifiable as to carcinogenicity in humans’ (Group 3).17 at a much higher rate than that shown in
ONS statistics. Given these two points, the Exposure to chemical compound ingredients in hair dyes occurs mostly by way of dermal NHS needs to establish better asbestos exposure, though airborne routes of exposure are also feasible. management processes and systems. In essence, these would have three elements:
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Given that the current state of epidemiological evidence on hair dye carcinogenicity is still ‘… the cumulative dose of dermal and ‘inconclusive’, new research has evaluated whether public health concerns can and airborne exposure for hairdressers or should be validated. beauticians could be higher (prolonged time with higher frequency) than that of This took the form of an investigation into cancer risk and cancer mortality among personal consumers’. users of permanent hair dye [the most aggressive sub-type and the most extensively used (occupying a market share of approximately 80%)], specifically 117,200 women (96% of Interestingly, shades of colour in hair dyes whom had white European ancestry) enrolled in the Nurses’ Health Study. are proportional to the concentration of ingredients, with darker dyes tending to These women, aged between 30 and 55, were followed for 36-years, having completed contain higher concentrations. To add to baseline tests in 1976. Cancers screened for included: that, women typically apply hair dye • Specific solid cancers: products that are the same colour as their o Basal cell carcinoma; natural hair colour. o Cutaneous squamous cell carcinoma; o Bladder cancer; Putting two and two together, it appeared o Breast cancer (stratified by hormone receptor status: oestrogen receptor plausible that Hodgkin lymphoma risk and progesterone receptor); would be most prevalent in those with o Brain cancer; naturally darker hair because the darkest of o Melanoma; permanent hair dyes pose the greatest o Colorectal cancer; carcinogenic risk. o Ovarian cancer; o Kidney cancer; and Nonetheless, the researchers also observed o Lung cancer. a higher risk of basal cell carcinoma • Major subclasses and histological subtypes of hematopoietic cancer: among women with naturally lighter hair, o Overall non-Hodgkin lymphoma; which was contradictory and therefore o Overall T cell non-Hodgkin lymphoma (in aggregate); ‘difficult to explain’. o Common histological types of B cell non-Hodgkin lymphoma (diffuse large B cell lymphoma, follicular lymphoma, and chronic lymphocytic It is possible that the conclusions arrived at leukaemia or small lymphocytic lymphoma); had been manipulated by several o Multiple myeloma; acknowledged limitations of the study. For o Hodgkin lymphoma (in aggregate); and instance, the results were not adjusted to o Myeloid leukaemias (also in aggregate). take into account the participants’ genetic During the course of the follow-up period, over 47,000 incident cancers were recorded, predisposition to cancer, skin tone and along with over 4,800 cancer-related deaths. historical use of other common cosmetics, which contain a ‘wide spectrum of effective Key findings to emanate from this large-scale prospective study were published in the British chemicals’. Medical Journal, in July.18 If the associations made are to be trusted, For the most part, there was no positive association between personal use of permanent how relevant might they be to the wider hair dye and cancer (risk or mortality), offering some reassurance to counter public health population? concerns. Well, aside from the distinction made However, the study authors did report positive associations between: between personal and occupational • ‘Ever’ hair dye users and basal cell carcinoma; exposures, the paper noted that the • Hair dye users with naturally dark hair and Hodgkin lymphoma; measured health impacts of permanent • Cumulative hair dye dosage and breast cancer (oestrogen receptor negative, hair dye use were confined to pre-1980 progesterone receptor negative, hormone receptor negative); and exposures, as not enough women in the • Cumulative hair dye dosage and ovarian cancer. cohort reported first use post-1980. Given that every member of the cohort was a Interestingly, none of these associations materialised until after 20-years of follow-up, which health professional, they were likely to be provides some indication as to the relevant latency periods. more sensitive than the general public to cautionary health and safety labels on What is more, the authors stressed that, whilst the chemical composition of hair dye products packaging, displayable since the 1980’s. used by professionals and novices are identical, observations relating to personal hair dye use could not necessarily be equated with occupational cancer, as:
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Permanent hair dyes contain hundreds of chemicals and, from 1930 to 1970, the industry was subject to minimal innovation. In fact, it is only over the past 40-or-so- years, which were excluded from the study, that the chemical makeup of hair dyes has seen any meaningful adjustments.
This does not necessarily mean that the published findings are irrelevant to present day exposures, though, not least because some of the original hair dye constituents (such as para phenylenediamine, resorcinol, 2,5-diaminotoluene, para and meta aminophenol, 4-amino-2- hydroxytoluene, 4-amino-meta-cresol, and 2-methyl-5-hydroxyethylaminophenol) still remain, albeit in regulated concentrations – read the various Opinions of the European Commission’s Scientific Committee on Consumer Safety (SCCS) and its predecessor, the Scientific Committee On Consumer Products (SCCP), for more guidance on the public health implications of these substances.19
That being said, the findings may be more applicable to the modern US population, as it has been slower to ban a number of individually putative carcinogenic elements, e.g. lead acetate, where containing products have been prohibited in the EU from 2005 onwards.20
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References
1 ‘Budget Variation Notice (Precedent T)’ (ARC Costs)
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‘OPINION ON p-Aminophenol’ (2011 SCCS)
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Disclaimer
This newsletter does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to provide an update on issues that may be of interest to those handling occupational disease claims. Specialist legal advice should always be sought in any particular case.
© BC Legal 2016.
BC Legal is a trading name of BC Legal Limited which is registered in England and Wales under company number 08963320. We are authorised and regulated by the Solicitors Regulation Authority. The registered office is 1 Nelson Mews, Southend-on-Sea, SS1 1AL. The partners are Boris Cetnik and Charlotte Owen. More details on the firm can be found at www.bc- legal.co.uk
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Directors: B. Cetnik, C. Owen Registered Office: 1 Nelson Mews, Southend-On-Sea, SS1 1AL PAGE | 18 BC Legal is a trading name of BC Legal Limited which is registered in England and Wales under company number 08963320 We are Authorised and Regulated by the Solicitors Regulations Authority (SRA No 617698)