July 10, 2017

The Genetic Non-Discrimination Act – too little too late

On March 8, 2017, the Parliament of Canada adopted the Genetic Non-Discrimination Act (GNDA) by majority vote.

Canada is the last G7 country to regulate generic non-discrimination, whereas certain countries, such as Germany (2009), did so several years ago

 Awaited and hoped-for by many, this legislation nevertheless leaves several insurance companies and provincial governments puzzled about its constitutional value and relevance. In that regard, the Government of Quebec just filed a  reference concerning the Genetic Non-Discrimination Act with its Court of Appeal.

While the objective behind this legislation prohibiting genetic testing for obtaining life insurance is noble, is it not in fact too little too late?

Too little

Before the GNDA came into force, privacy legislation and the constitutional protection of human rights were not sufficient, on their own, to counter genetic discrimination. Although legally speaking, it was possible for a litigant to emerge victorious at the end of a long and difficult trial, it appears that no one had the financial resources and time required to pursue such a case until the end.

In this regard, the Genetic Non-Discrimination Act therefore seems to respond to a genuine problem.

The insurance industry and medical community, however, have issued reservations regarding its actual applicability. In the normal life-insurance enrollment process, applicants must provide their entire medical files – now without genetic test results.

This new reality seems to render it extremely difficult, even impossible, for physicians to keep medical files completely insulated from information regarding genetic tests already conducted. It is hard to believe that health professionals will never, at one time or another, refer to these tests in subsequent notes.

Moreover, according to insurers, this new law could have a perverse effect on insureds. Genetic non-discrimination in the declarations means that all consumers will be placed on equal footing. Thus, the very principle of insurance is jeopardized.

Fundamentally, insurers establish the premiums that insureds pay based on the risk that they will have to cover. To that end, it is agreed that the insurer and insured must possess the same knowledge and must lay their cards on the table, so to speak.

This reality now risks being seriously undermined, and contrary to what we might think, this will not be beneficial for everyone.

Too late

Canada is the last G7 country to regulate generic non-discrimination, whereas certain countries, such as Germany (2009), did so several years ago.

The Canadian law resulting from Bill S-201, however, casts a much wider net than its analogous foreign legislation. For example, in the United States, the federal genetic non-discrimination legislation does not apply to life, disability or long-term care insurance. It applies principally to health insurance. In the United Kingdom, a non-legislative approach was adopted, allowing the market to self-regulate.

In Canada, this new law comes at a time when insurance companies had already made commitments with respect to their rules of conduct in insurance of persons. As of January 1, 2018, it was provided that consumers would no longer be required to disclose the results of genetic tests in applications for coverage of $250,000 or less.

This would have affected over 85% of coverage currently provided in Canada and would have helped solve many issues, particularly Canadians’ concern about disclosing personal information and the uncertainty resulting from this new law regarding increased premiums for all Canadians.

And the story does not stop there. It should also be noted that the law came into force against the will of the Trudeau government, which allowed the members of the House of Commons to vote freely on the issue.

Quebec has asked its Court of Appeal to verify the constitutional validity of the law, and the federal government, which sees an intrusion into provincial powers, is also considering asking the Supreme Court for its opinion.