Writing this in the midst of the Coronavirus pandemic, it feels like the lockdown status will never end. Most of us will have friends and family working within the NHS who are selflessly supporting sick people and devoting all of their energies to caring for those most in need and helping to steer the country to a much better place.

It seems hard therefore to focus on an injustice for mesothelioma patients which existed before the current medical emergency and will continue as we emerge from the crisis. However, this injustice must now be addressed urgently to support the needs of mesothelioma victims in the future.

Introduced in July 2012, the Diffuse Mesothelioma Payment Scheme (DMPS) was designed to provide one off lump sum awards for victims of mesothelioma comparable to civil awards. The Scheme, which was brought in to force by later legislation in 2014, helped to fill an appalling vacuum which had existed for many years whereby individuals who had been the victims of negligent exposure to asbestos dust by dissolved employers and had gone on to develop mesothelioma, were unable to obtain compensation if insurance cover (the old policy document) for the dissolved employer could not be traced. Often, this was because insurers had – on their own admission – failed to keep comprehensive records or those records had been lost or destroyed. Many of these missing records related to companies insured after 1972 when all employers were legally obliged to hold insurance cover against the risk of employees sustaining personal injury at work pursuant to the Employers’ Liability (Compulsory Insurance) Act 1969.

Forcing the insurance industry to right this wrong, the Association of British Insurers (ABI) agreed to the introduction of the Scheme from July 2012 with a levy on insurers each year of a maximum of 3% of employers’ liability insurance premiums. This was projected to provide £300m over a period of 10 years. Those diagnosed before 25 July 2012 were unable to benefit from the Scheme which began to take applications in July 2014.

In its report of the financial year to April 2018, the Department for Work & Pensions advised that the average award to sufferers was £145,000. The equivalent sum to April 2019 was £148,000 which has allowed the Scheme administrators to operate with a significant surplus.

These awards for victims now fall some way short of compensation levels through the courts. Additionally, since the introduction of the Scheme, my experience as a specialist asbestos practitioner is that a 2-tier system has emerged which the Scheme was designed to remedy. There are those who receive the fixed non-negotiable tariff under the Scheme, and those who are able to trace insurers and are therefore able to access funds for immunotherapy and other treatments not available on the NHS. The difference is therefore whether an historic policy of insurance has been traced by the insurance industry or not.

It has become increasingly apparent that treatments for mesothelioma which are not currently available on the NHS can be effective in controlling disease progression. Though clinical trials at many specialist centres are ongoing, from experience with my own clients, I can say that treatments have been successful in prolonging the lives of some clients and a small number have exceeded all expectations.

The problem is of course that whilst those with viable claims against insurers are able, for example, to claim loss of earnings in addition to the costs of treatment, those whose only remedy is via the DMPS cannot. With treatment costs on occasions exceeding £10,000 every 3 weeks, an average DMPS payment is likely to provide treatment for less than a year, leaving nothing for the family to compensate for other areas of financial loss.

Many will not be able to benefit from these new and evolving treatments because their disease has progressed too far, the patient declines treatment, opts to participate in a clinical trial or other unrelated conditions make any form of treatment unadvisable. However, for those who were negligently exposed to asbestos by their employers, the determining factor must be whether these treatments are recommended by the treating oncologist.

The Scheme can and must be amended to catch up with medical developments and expectations of patients and their families. In turn, the Scheme administrators can be satisfied that payments need be paid only to patients who receive treatment. It’s time for the DMPS to end the 2-tier system for victims.

Written by Ian Bailey.