As genetic testing becomes increasingly accessible and integrated into modern healthcare, it has also raised complex legal and ethical questions, particularly in the realm of insurance. In Canada, the Genetic Non-Discrimination Act (GNDA), enacted in 2017, plays an important role in protecting individuals from being compelled to disclose genetic test results, especially in the context of employment and insurance relationships. But what exactly does the GNDA mean for insurance underwriting and the denial of insurance claims?
This interesting question came to our attention after reviewing an article posted by BRCAinBC, an organization that brings attention to and assists British Columbians affected by the BRCA gene mutations and associated hereditary cancer syndromes. Their article “What Can I Do If I Suspect Discrimination Due to a BRCA Gene Mutation” looks at potential discrimination due to an individual’s genetics, what implications that might have in the insurance realm, and potential remedies for individuals who believe they have faced discrimination. You can read BCRAinBC’s article here.
What Is the Genetic Non-Discrimination Act?
The GNDA makes it a criminal offence for any person to require an individual to undergo a genetic test or disclose the results of a genetic test as a condition of:
- Providing goods or services,
- Entering into or continuing a contract or agreement, or
- Offering or continuing specific terms or conditions in a contract.
Violations can result in significant penalties of up to $1 million in fines and/or five years of imprisonment.
Importantly, the GNDA amends both the Canada Labour Code and the Canadian Human Rights Act, explicitly adding “genetic characteristics” as a prohibited ground of discrimination.
Implications for Insurance Underwriting
Insurance companies typically assess risk by collecting health information during the underwriting process. Traditionally, this could include family medical history, select personal medical details and lifestyle information. With the advent of genetic testing, insurers were increasingly interested in using such results to assess risk for policies like life, critical illness, and disability insurance.
The GNDA prohibits insurers from asking applicants to undergo genetic testing or disclose previous genetic test results. However, insurers can still ask about family medical history and personal medical history (such as recent surgeries or scheduled screening appointments), and applicants remain obligated to answer truthfully.
This presents a shift in the balance between an individual’s right to privacy and an insurer’s interest in accurate risk assessment. While insurers will no doubt argue that access to genetic information improves underwriting fairness and prevents adverse selection, the GNDA affirms that the privacy of genetic information is paramount.
Denial of Insurance Claims: Can Genetic Testing Be a Factor?
Once a policy is in place, insurance claim denials, be it for long-term disability, life insurance or some other type of coverage, are typically based on the terms of the policy and whether the insured made a material misrepresentation during the application. Under the GNDA, if an insured did not disclose genetic test results because they were not legally required to do so, that omission cannot be used as a basis to void the policy or deny a claim.
However, if an applicant voluntarily disclosed such information or if there’s ambiguity around whether certain family history was misrepresented, the insurer might still challenge a claim based on material misrepresentation.
As far as we are aware, this issue has not been tested in the Courts.
The Future of Genetic Testing & Insurance
As personalized medicine and genetic testing continue to evolve, legal protections like those in the GNDA will remain critical. For insurers, compliance with the GNDA may mean rethinking underwriting practices and policy and application language, as well as shifting their perspective on the value of proactive consumer health behaviours. For consumers, it hopefully means greater autonomy and privacy in managing their health information. The experienced insurance denial lawyers at Taylor & Blair LLP will be keeping a close eye on this area as it develops and no doubt makes its way through adjudication in the court system.
If you have a question about genetic discrimination and a denial of insurance coverage, contact the lawyers at Taylor & Blair LLP for a free consultation today.