A few years ago I wrote a Critical Illness chapter in a book on disability insurance (“Disability Insurance Law in Canada”, Eric J. Schjerning, 2nd Ed.). At the time, the United States had passed legislation, The Genetic Information Nondiscrimination Act of 2008 (“GINA”) designed to protect individuals from the misuse of genetic information in health insurance. Although Canada had not yet passed legislation on the issue, on May 13, 2016, Bill S-201, An Act to prohibit and prevent genetic discrimination had been given its first reading in the House of Commons.
I explained in the Critical Illness chapter that the concern related to genetic testing was that :
“…unlike an individual’s medical history which refers to events that have already occurred, genetic testing may suggest a predisposition which is largely speculative in nature due to the fact that the manifestation of a specific disease in a specific individual may be dependent on a host of complex multifactorial elements. Allowing insurers access to genetic information could result in young, healthy individuals who live healthy, risk free lifestyles becoming uninsurable due to a genetic predisposition which may never manifest itself.”
In other words, a genetic predisposition to cancer, heart disease, diabetes is not an automatic guarantee of those conditions and, in fact, lifestyle choices can often play a significant role in minimizing or eliminating risks.
Allowing insurance companies to access genetic testing results would, without a doubt, result in genetic discrimination. Many individuals seeking insurance would become uninsurable or would have to pay exorbitant insurance premiums in order to become insured.
In 2017, the Canadian Parliament enacted the Genetic Non‑Discrimination Act (“GNDA”) which prohibits individuals and corporations from:
A contravention of the GNDA can result in a fine of up to $1 million or imprisonment of up to 5 years, or both, or a fine of up to $300,000 or imprisonment up to 12 months, or both on summary conviction.
The GNDA was designed to provide protection to those that have undergone genetic testing and to reduce the risk of genetic discrimination. The motivation for the legislation was to encourage individuals to undergo genetic testing which could enable earlier detection of potential health issues, allow for more effective medical care and improve potential health outcomes as well as safeguard autonomy, privacy and equality.
On July 10, 2020 The Supreme Court of Canada held that Parliament has the authority to criminalize mandatory genetic testing and the forced disclosure of voluntary genetic test results.
This is a landmark ruling as it means that insurance companies continue to face punishment for the unauthorized use of genetic testing. This now means that individuals can continue to pursue genetic testing without the fear of discrimination or concern that their genetic information will be used without their consent.
There is no doubt that insurers are eager to have access to genetic information in order to underwrite insurance policies.
In fact, the Canadian Life and Health Insurance Association (“CLHIA”), was one of the parties that argued the case before the Supreme Court of Canada. The CLHIA argued that the law deprives insurers of critical information, “undermining a central principle of insurance underwriting: the equality of information between insurers and insureds…”
Anyone who is applying for individual insurance or private insurance policies such as life insurance, critical illness insurance or long term disability insurance (this may include professionals such as doctors, chiropractors, dentists, lawyers, engineers, architects etc. or self-employed individuals who do not have access to group insurance) would be impacted by an insurer’s ability to gather genetic information in order to medically underwrite policies.
Medical underwriting is the process whereby an insurance company assesses risk by examining an individual’s medical information, health status and health history in order to determine whether they are insurable and if they are insurable, what premium to charge based on various risk factors.
Even without access to genetic information elicited from genetic testing, insurers have been known to discriminate against certain individuals on the basis of their health history. Once insurance underwriters have obtained information from an insured through the application and paramedical process, they conduct a risk assessment based on underwriting guidelines and assumptions about a group’s behaviour. Insurance practices distinguish between people based on gender, age, mental status, family health history and pre-existing medical conditions. In Canada, although insurers are permitted to medically underwrite insurance policies this process can, in certain circumstances, lead to discriminatory practices.
My Partner, Courtney Mulqueen, was recently quoted in a CBC article published on August 12, 2019, in relation to an individual whose life insurance had been denied by Sun Life Assurance Company of Canada on the basis of a history of generalized anxiety disorder. She expressed concern that the practice of excluding people from insurance coverage based on mental illness could discourage people from seeking help for their mental health issues for fear that they could be rendered uninsurable when applying for insurance.
The same could be said for genetic testing. Knowing that an insurer could potentially access their genetic results for underwriting purposes has been a significant disincentive to many who have contemplated genetic testing. Failing to pursue genetic testing could be detrimental in some cases where being forewarned could have eliminated or minimized the risk of illness. Knowledge allows people to be proactive with their health.
There is a deep irony in the fact that genetic testing, which results in people taking proactive steps to minimize their health risks, could actually result in positive outcomes for insurance companies. If people with knowledge of their possible future health outcomes are able to avoid developing diseases through lifestyle management, the risk of developing a critical illness, disability and death is reduced.
That being said, as lawyers representing individuals in disability, critical illness and life insurance claims against insurers, our focus is on ensuring that insurers are NOT given more power over individuals than they already have and this leveling of the playing field by the Supreme Court of Canada is a very welcome development!
If you would like to discuss your Long-Term Disability claim, Life Insurance or Critical Illness claim with an experienced lawyer, MK Disability Lawyers are experienced lawyers dedicated exclusively to the practice of disability insurance litigation, life insurance and critical illness claims.
If you believe that you have been discriminated against in your application for private/individual LTD/life insurance, based on a history of mental illness or for some other reason, please contact us. MK Disability Lawyers are experienced in representing professional clients in their complex individual/private long-term disability, critical illness and life insurance disputes.
The preceding is not intended to be legal advice. This blog is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog, you understand that there is no solicitor-client relationship between you and the blog publisher. The blog should not be used as a substitute for competent legal advice from a licensed lawyer in your jurisdiction. If your disability claim has been denied and you require legal advice, contact a lawyer specializing in disability law.