With the ability to reveal an individual’s risk of developing various illnesses and disease, genetic testing is expected to transform the practice of medicine. However, those with known family history of certain conditions may opt not to take such tests for fear of results disclosure and the subsequent discrimination. The impact of such choices is far reaching when it comes to a person’s lifestyle and access to medical care.

In the insurance industry, there is a growing concern that asking for this type of information will prevent people from seeking or obtaining needed insured protection. This and other considerations have led to the introduction of the private member’s bill (Bill S-201). If enacted, this legislation would prevent insurers (and others) from either requiring genetic testing or requesting the results. In turn, this may have an impact on pricing for insured products and their availability.

Bill S-201 (the “Bill”) would prohibit insurance companies from requiring an individual to undergo a genetic test (as defined as a test that analyzes DNA, RNA or chromosomes for purposes such as the prediction of disease or vertical transmission risk, or monitoring, diagnosis or prognosis.) as a condition of purchasing an insurance policy (which includes life, living benefits, and group insurance). Further, this Bill would prohibit insurance companies from refusing to provide life insurance coverage because the applicant has refused to disclose the results of a genetic test. As well, an insurance company (or other persons including insurance agents) will be prohibited from collecting, using or disclosing the results of a genetic test of the individual without the individual’s written consent.

From the insurer’s perspective, because the fundamental basis of insurance is the concept of equal knowledge between the insured and the underwriter of the insured product, if the applicant keeps this information private and confidential, the insurance company will ultimately pay out more unexpected claims and this will eventually increase the cost of insurance. An increase in cost may mean fewer Canadian purchase insurance for themselves.

At the present time, the insurance industry does have a code whereby they don’t require an applicant to go for genetic testing, nor do they require the results from these tests taken by family members. However, because within each provincial Insurance Act there is a provision that any material fact relevant to an application must be disclosed, Bill S-201 is in direct conflict with provincial legislation. In January, the insurance industry announced that it will voluntarily agree not to request genetic testing for life insurance up to $250,000, which blankets close to 85% of all current insurance applications.

While the underlying rationale to prevent discrimination is sound, all sides must be considered. We will continue to monitor this, and other legislation, relevant and of concern to our clients.  We always welcome your feedback.

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