September 14, 2024 • 10 mins
There's growing concern over whether insurers should be able to access people's genetic information when setting their premiums.
The Government is currently in the final stages of revamping insurance laws, but the regulation of insurers' use of genetic testing remains unaddressed.
DLA Piper partner Emma Moran says the legislation hasn't been updated since 1908 - leaving room for plenty of grey areas.
"When you take out health and life insurance, your insurer can ask you to go and see your doctor, get a full medical screen - and that might include some blood tests and possibly even an x-ray, for example. And that's allowed by law."
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Episode Transcript
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Speaker 1 (00:06):
You're listening to the Sunday Session podcast with Francesca Rudgin
from News TALKSB All.
Speaker 2 (00:13):
Right, a murky question to start the morning. Should life
and health insurers be able to access your genetic information
when setting your premiums. The government is currently in the
final stages of revamping insurance laws, but the regulation on
insurer's use of genetic testing remains unaddressed. It has left
some legal and medical experts concerned. One of those is
(00:33):
DLA Piper partner Emma Morn and she joins me. Now,
good morning, Emma.
Speaker 3 (00:38):
Good morning, Francesco.
Speaker 2 (00:40):
Tell me what is the current legal situation around genetic
testing and insurance in New Zealand at the moment.
Speaker 3 (00:47):
Right now, it's not specifically regulated in New Zealand and
there isn't any government policy on it at the moment.
You have this mixture of practices with some insurers taking
this information into account and others not. And just to
put that in context, we're talking about reforming life and
health insurance laws and those were drafted, some of them
(01:08):
way back in nineteen oh eight, So we're talking about
law that is archaics by you feeling standards long before
genetic testing was even something people.
Speaker 2 (01:18):
Thought about, even considered. So legally, can someone be told
to get a genetic test by an insurer?
Speaker 3 (01:26):
This is again not completely clear. What you've got under
a New Zealand law is a right to refuse to
undergo any medical treatment, so you can't be forced to
do this. But when you take out help in life insurance,
your insurer can ask you to go and see your
doctor get a full medical screen that might include some
blood tests and possibly even an X rays for example.
(01:47):
And that's some book allowed by law because as a consumer,
it's up to you whether or not you want to
take out that insurance. And there's an argument there that
genetic testing is just one step along that line, and
because the law is silent on it, it is very
theoretically possible your insurer could ask you to do that.
But I'm not a that is actually happening. Ema.
Speaker 2 (02:09):
I have a funny feeling I know the answer to
this question. But if you have done genetic testing, you've
got that information available, do you have to hand it
over to your insurer if they ask you to?
Speaker 3 (02:19):
Legally so under New Zealand law At the moment, if
your insurer asks you that question, then you do have
to be honest in answering it. That's part of your
obligation as a consumer to disclose that information to your insurer.
So the little catch to that is it's still got
to be consistent with privacy law, so it has to
(02:39):
be relevant. If you're talking about vehicle insurance, then maybe
it's not as relevant, But if you're talking about life
and health insurance, then the answer would most likely be yes.
Speaker 2 (02:50):
So I can see some pretty obvious concerns around this
and the how vague it is. Emma, what are your
concerns with the current system.
Speaker 3 (03:01):
The main issue is that it's just not clear, and
that means you've got different is doing different things, and
as a consumer, you don't necessarily know what to during
your take until you look to take out that insurance.
And then from the insurance perspective, it's not really ideal
either because that't operating in this slightly gray area where
(03:25):
most of the time they're treating this like general health
information that the law doesn't say yes, that's the right
thing to do or no it's not. So you've got
to real gap with privacy law, with human rights law
and insurance law. That's just not particularly satisfactory.
Speaker 2 (03:41):
So if you do get tested and you discover that
you're predisposed genetically to something, does that necessarily mean that
insurers would charge you higher premiums?
Speaker 3 (03:56):
And that's a great question, and that's really the perhaps
of the issue. The reason the insurers want this information
is because they want to figure out how to price
their products. It's fairly as possible, and they've got complicated
analysis that they do based on statistical information to say,
if you've got this condition or this marker, your risks
are perhaps a little bit higher than the general population,
(04:20):
and before you pay slightly more in your premiums. And
that fundamentally does make some sense. But what the medical
practitioners and others are saying on the other side of
the equation is with genetics markers, you're not talking about
a condition, per see, you're talking about the risk of
a condition developing. So it's like the risk.
Speaker 2 (04:42):
Of a risk, because I would be very disappointed if
I was, you know, my genetic markings came back and said, yes,
your risk for this, then through it you pay for it,
and then throughout your life you never develop it. It's
not a problem, right, So that's going to be an
issue surely for insurance.
Speaker 3 (05:00):
Absolutely, yes, that's absolutely right. But then when you look
at how insurance is priced, something like your age or
your sex might be taken into accounts and that may
not be relevant to you personally, but it is relevant
across a population base. So it's sort of a I'm
not going to say a crude measurements are statistical measurements,
(05:21):
And then of course there is a real balance there.
Speaker 2 (05:23):
Yeah, no, absolutely, And then of course there's the possibility
that other customers will have to pay to cover more
people at risk because I suppose if insurance becomes it's
already expensive, that it becomes more expensive, people will decide not
to not to take it out exactly.
Speaker 3 (05:39):
So that's the argument on the other side of the
leader it is eventually, Yeah, yeah.
Speaker 2 (05:44):
It's a minefield, isn't it. What as well, if you
are asked to get this genetic testing done, but maybe
you personally don't want to know whether you would, you know,
genetically lined up to get something that maybe has been
in the family and things. Maybe actually you should be
your choice that you get on and live your life
the way you want to without necessarily knowing information.
Speaker 3 (06:08):
Yeah, that's absolutely right, and it is fundamentally your choice
whether or not you want that information. A lot of
the submissions that came through from medical practitioners of the
Cancer Society, et cetera, say, you know, this information is
really valuable to have because forearmed is or warmed, for
warned is forearmed. But on the other hand, you might
(06:30):
not want to know. You might have really good reasons
for not wanting to know, and that should be fundamentally
your choice.
Speaker 2 (06:36):
Yes, absolutely, I see what you're saying. It might stop
people actually getting the test done when it could be
very valuable for them to know that information. And I
presume the next thing is that if you test and
you show to be a risk of something, and you've
got your family under health insurance, they're going to go
look at your children and go, well, we're going to
test them now as well, and potentially in voice high
(06:58):
premiums for them as well.
Speaker 3 (07:00):
That is a possibility. And so what the Select Committee
saying is let's develop some read relations that are really
clear on what the parameters are and what they should
be about, how that informations use.
Speaker 2 (07:13):
What's the situation in other countries.
Speaker 3 (07:16):
So New Zealand does stand alone at the moment is
one of the only OECLE countries that doesn't have law
on this. In Australia there's been a moratorium since twenty
eighteen on how this information can be used across most
life insurance policies. The UK has had an almost complete
band since two thousand and one. In the US and
(07:37):
Canada in a similar situation too. Then you've got places
in the EU with GDPR and the right to be
forgotten that goes possibly even a bit further than that.
So you've got, for example, front saying okay, this testing
can't be taken into accounts, and if say you're a
cancer survivor and you've been well for a good number
of years, you don't even need to disclose that information
(07:59):
to your insurance. So there's a real raft of different
approaches internationally.
Speaker 2 (08:04):
Is there an outcome though, that is fair to the
consumer and the insurer? Do you think?
Speaker 3 (08:09):
I mean, that's a great that's the million dollar question,
is right, and it is I think really helpful to
look at what other countries are doing, and most of
them have sought to put some sort of limit on this.
And there's also the Yewing Declaration, which talks about the
right to be free from discrimination based on genetic markers.
(08:30):
So there is some sort of overwhelming international information that says, yeah,
there should be some constraints here.
Speaker 2 (08:38):
Should these be recommendations, regulations or legislation.
Speaker 3 (08:43):
Another great question when you're dealing with something like this
that has got privacy issues, human rights issues, and then
of course really important commercial considerations. I think ideally you
would see that in primary legislation. And the Select Committee
does recognize this is a pretty chunky issue to leave
for regulations that would be developed by the Financial Markets Authority,
(09:05):
which is very knowledgeable about insurance law, but not necessarily
about something as technical as smutic testings and healthcare and
so on. Yeah. So in an ideal world, and yet
we'd be talking about some legis sort of reform at
that top level. That's if we are you know, in reality,
(09:26):
what the committee said is the balance could be struck
by having this down through regulations.
Speaker 2 (09:31):
Emma, do we have many laws that are hundred years
old in New Zealand? It don't never been changed just
out of curiosity.
Speaker 3 (09:38):
There's not too many left now, No, No, this is
this is definitely one of the older ones. And it's
quite a hope when you go and read that text
and think, gosh, we've come a long way in the
country to make our lawer a lot more accessible and
a lot clearer, and for something as important as life insurance.
You know, this is very welcome to see that we're
(09:58):
we're bringing this up to date.
Speaker 2 (10:00):
Emma Mouren, thank you very much for talking us through that.
I appreciate it. That was DLA Piper
Speaker 1 (10:05):
Partner More and m For more from the Sunday session
with Francesca Rudkin, listen live to News Talks it B
from nine am Sunday, or follow the podcast on iHeartRadio
You're listening to the Sunday Session podcast with Francesca Rudgin
from News TALKSB All.
Speaker 2 (00:13):
Right, a murky question to start the morning. Should life
and health insurers be able to access your genetic information
when setting your premiums. The government is currently in the
final stages of revamping insurance laws, but the regulation on
insurer's use of genetic testing remains unaddressed. It has left
some legal and medical experts concerned. One of those is
(00:33):
DLA Piper partner Emma Morn and she joins me. Now,
good morning, Emma.
Speaker 3 (00:38):
Good morning, Francesco.
Speaker 2 (00:40):
Tell me what is the current legal situation around genetic
testing and insurance in New Zealand at the moment.
Speaker 3 (00:47):
Right now, it's not specifically regulated in New Zealand and
there isn't any government policy on it at the moment.
You have this mixture of practices with some insurers taking
this information into account and others not. And just to
put that in context, we're talking about reforming life and
health insurance laws and those were drafted, some of them
(01:08):
way back in nineteen oh eight, So we're talking about
law that is archaics by you feeling standards long before
genetic testing was even something people.
Speaker 2 (01:18):
Thought about, even considered. So legally, can someone be told
to get a genetic test by an insurer?
Speaker 3 (01:26):
This is again not completely clear. What you've got under
a New Zealand law is a right to refuse to
undergo any medical treatment, so you can't be forced to
do this. But when you take out help in life insurance,
your insurer can ask you to go and see your
doctor get a full medical screen that might include some
blood tests and possibly even an X rays for example.
(01:47):
And that's some book allowed by law because as a consumer,
it's up to you whether or not you want to
take out that insurance. And there's an argument there that
genetic testing is just one step along that line, and
because the law is silent on it, it is very
theoretically possible your insurer could ask you to do that.
But I'm not a that is actually happening. Ema.
Speaker 2 (02:09):
I have a funny feeling I know the answer to
this question. But if you have done genetic testing, you've
got that information available, do you have to hand it
over to your insurer if they ask you to?
Speaker 3 (02:19):
Legally so under New Zealand law At the moment, if
your insurer asks you that question, then you do have
to be honest in answering it. That's part of your
obligation as a consumer to disclose that information to your insurer.
So the little catch to that is it's still got
to be consistent with privacy law, so it has to
(02:39):
be relevant. If you're talking about vehicle insurance, then maybe
it's not as relevant, But if you're talking about life
and health insurance, then the answer would most likely be yes.
Speaker 2 (02:50):
So I can see some pretty obvious concerns around this
and the how vague it is. Emma, what are your
concerns with the current system.
Speaker 3 (03:01):
The main issue is that it's just not clear, and
that means you've got different is doing different things, and
as a consumer, you don't necessarily know what to during
your take until you look to take out that insurance.
And then from the insurance perspective, it's not really ideal
either because that't operating in this slightly gray area where
(03:25):
most of the time they're treating this like general health
information that the law doesn't say yes, that's the right
thing to do or no it's not. So you've got
to real gap with privacy law, with human rights law
and insurance law. That's just not particularly satisfactory.
Speaker 2 (03:41):
So if you do get tested and you discover that
you're predisposed genetically to something, does that necessarily mean that
insurers would charge you higher premiums?
Speaker 3 (03:56):
And that's a great question, and that's really the perhaps
of the issue. The reason the insurers want this information
is because they want to figure out how to price
their products. It's fairly as possible, and they've got complicated
analysis that they do based on statistical information to say,
if you've got this condition or this marker, your risks
are perhaps a little bit higher than the general population,
(04:20):
and before you pay slightly more in your premiums. And
that fundamentally does make some sense. But what the medical
practitioners and others are saying on the other side of
the equation is with genetics markers, you're not talking about
a condition, per see, you're talking about the risk of
a condition developing. So it's like the risk.
Speaker 2 (04:42):
Of a risk, because I would be very disappointed if
I was, you know, my genetic markings came back and said, yes,
your risk for this, then through it you pay for it,
and then throughout your life you never develop it. It's
not a problem, right, So that's going to be an
issue surely for insurance.
Speaker 3 (05:00):
Absolutely, yes, that's absolutely right. But then when you look
at how insurance is priced, something like your age or
your sex might be taken into accounts and that may
not be relevant to you personally, but it is relevant
across a population base. So it's sort of a I'm
not going to say a crude measurements are statistical measurements,
(05:21):
And then of course there is a real balance there.
Speaker 2 (05:23):
Yeah, no, absolutely, And then of course there's the possibility
that other customers will have to pay to cover more
people at risk because I suppose if insurance becomes it's
already expensive, that it becomes more expensive, people will decide not
to not to take it out exactly.
Speaker 3 (05:39):
So that's the argument on the other side of the
leader it is eventually, Yeah, yeah.
Speaker 2 (05:44):
It's a minefield, isn't it. What as well, if you
are asked to get this genetic testing done, but maybe
you personally don't want to know whether you would, you know,
genetically lined up to get something that maybe has been
in the family and things. Maybe actually you should be
your choice that you get on and live your life
the way you want to without necessarily knowing information.
Speaker 3 (06:08):
Yeah, that's absolutely right, and it is fundamentally your choice
whether or not you want that information. A lot of
the submissions that came through from medical practitioners of the
Cancer Society, et cetera, say, you know, this information is
really valuable to have because forearmed is or warmed, for
warned is forearmed. But on the other hand, you might
(06:30):
not want to know. You might have really good reasons
for not wanting to know, and that should be fundamentally
your choice.
Speaker 2 (06:36):
Yes, absolutely, I see what you're saying. It might stop
people actually getting the test done when it could be
very valuable for them to know that information. And I
presume the next thing is that if you test and
you show to be a risk of something, and you've
got your family under health insurance, they're going to go
look at your children and go, well, we're going to
test them now as well, and potentially in voice high
(06:58):
premiums for them as well.
Speaker 3 (07:00):
That is a possibility. And so what the Select Committee
saying is let's develop some read relations that are really
clear on what the parameters are and what they should
be about, how that informations use.
Speaker 2 (07:13):
What's the situation in other countries.
Speaker 3 (07:16):
So New Zealand does stand alone at the moment is
one of the only OECLE countries that doesn't have law
on this. In Australia there's been a moratorium since twenty
eighteen on how this information can be used across most
life insurance policies. The UK has had an almost complete
band since two thousand and one. In the US and
(07:37):
Canada in a similar situation too. Then you've got places
in the EU with GDPR and the right to be
forgotten that goes possibly even a bit further than that.
So you've got, for example, front saying okay, this testing
can't be taken into accounts, and if say you're a
cancer survivor and you've been well for a good number
of years, you don't even need to disclose that information
(07:59):
to your insurance. So there's a real raft of different
approaches internationally.
Speaker 2 (08:04):
Is there an outcome though, that is fair to the
consumer and the insurer? Do you think?
Speaker 3 (08:09):
I mean, that's a great that's the million dollar question,
is right, and it is I think really helpful to
look at what other countries are doing, and most of
them have sought to put some sort of limit on this.
And there's also the Yewing Declaration, which talks about the
right to be free from discrimination based on genetic markers.
(08:30):
So there is some sort of overwhelming international information that says, yeah,
there should be some constraints here.
Speaker 2 (08:38):
Should these be recommendations, regulations or legislation.
Speaker 3 (08:43):
Another great question when you're dealing with something like this
that has got privacy issues, human rights issues, and then
of course really important commercial considerations. I think ideally you
would see that in primary legislation. And the Select Committee
does recognize this is a pretty chunky issue to leave
for regulations that would be developed by the Financial Markets Authority,
(09:05):
which is very knowledgeable about insurance law, but not necessarily
about something as technical as smutic testings and healthcare and
so on. Yeah. So in an ideal world, and yet
we'd be talking about some legis sort of reform at
that top level. That's if we are you know, in reality,
(09:26):
what the committee said is the balance could be struck
by having this down through regulations.
Speaker 2 (09:31):
Emma, do we have many laws that are hundred years
old in New Zealand? It don't never been changed just
out of curiosity.
Speaker 3 (09:38):
There's not too many left now, No, No, this is
this is definitely one of the older ones. And it's
quite a hope when you go and read that text
and think, gosh, we've come a long way in the
country to make our lawer a lot more accessible and
a lot clearer, and for something as important as life insurance.
You know, this is very welcome to see that we're
(09:58):
we're bringing this up to date.
Speaker 2 (10:00):
Emma Mouren, thank you very much for talking us through that.
I appreciate it. That was DLA Piper
Speaker 1 (10:05):
Partner More and m For more from the Sunday session
with Francesca Rudkin, listen live to News Talks it B
from nine am Sunday, or follow the podcast on iHeartRadio
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