You would think that the use of genetic testing in insurance is pretty well sorted, wouldn’t you? After all, there’s been an agreement about this between the insurer trade body and the UK Government for some years now. Yet there’s a problem. That agreement is focused on only one part of the insurance life-cycle: underwriting. What about claims?
Take these words from a partner of a law firm at a recent insurance event, speaking about liability claims … “insurers will be able to judge recovery rates much better because you’ll know what makes an individual tick in terms of their DNA and their health profile.”
His slides backed this up… “The individualised treatment plans should leave to higher and faster recovery rates for injured claimants…. In the future it will be easier to target the treatments and monitor and assess recoveries based on an individual’s DNA”.
What this is saying is that genetic testing is going to be used to assess settlements amounts in complex injury claims.
A Partial Agreement
‘So what’, some insurance people may say, ‘these people have got insurance; now it’s about making sure they get the right settlement for their claim’. And there’s a bit of mileage in that. These are settlements meant to address complex health issues over many years, so it’s important that the amount is not set too low.
Yet won't other insurance people find this all a bit of a surprise? Doesn’t the agreement between the Association of British Insurers and the UK Government restrict the use of genetic testing in insurance to only very narrow circumstances?
Well, it does and it doesn’t. It is essentially an agreement, as the headline on the UK Government’s website confirms, “on the use of genetic test results in underwriting insurance policies.” The agreement is based around underwriting practices, not claims practices.
There is however one mention of claims in the code , in a clause towards the end of the second appendix. It says this: “Predictive genetic tests results not disclosed until the point of claim will not impact on payment of the claim unless the insured person was asked to disclose the information in line with the terms of the Commitments applicable at the time of application…”
So what’s happening? Things don’t seem to be marrying up here.
Having read a few too many policy wordings in my time, my eyes alighted on the word ‘payment’. Is it being interpreted in a binary fashion, as in ‘you’ll get payment or not get payment’. Or, to put it another way – ‘your claim won’t be turned down because you didn’t disclose the genetic test result in the circumstances described’. Is that being interpreted in the market as a separate matter to the settlement amount itself, which is all about quantum, and so is hugely varied? It’s possible.
Yet why are such questions possible, why is such conjecture needed? This should absolutely have been nailed down in the code itself. Why wasn’t it? And this now needs to be sorted out quickly and the position on claims made clear and certain. Who can be relied on to do so this time round?
Let’s put aside the Code for a minute and focus on the fundamental question here. Is the acceptable to use DNA profiling or genetic testing in insurance claims? I don’t believe so on ethical grounds, nor on scientific grounds. And I think that would be the viewpoint of most of the public too.
Insurers should be asking themselves, and their advisers, some pretty serious ethical questions. Start with these:
- is this a practice that you want your firm to be associated with? If so, how would you defend it if challenged?
- what value will it add to your claims service? And how certain is that value, given the scientific question marks hanging over this?
- are you equipped to run a humans rights impact assessment on this? And who will you use to weigh up the significance of the results?
- how transparent is this going to be to claimants and what options will they have?