Positive Life NSW

Why this Article?

For obvious reasons, Insurance is an important issue for people with HIV. Insurance provides a person with protection and correspondingly, peace of mind. Nowadays, you can get insurance to cover you for lost wages if you’re off work, or cover for lost baggage on that tour of Greece. You can get cover for unforseen medical expenses, or ensure a lump sum payout in case you find yourself unable to continue with employment.

Some types of insurance by nature require disclosure of your HIV status. An example would be cover for unforseen medical expenses. For other types of insurance (cover for those lost bags for instance), disclosure of your HIV status may seem irrelevant or unnecessary.

However, even in these latter cases you may need to tell your insurer about your HIV+ status, otherwise you may be refused cover. This sounds discriminatory but unfortunately, there is currently a gap between Discrimination and Insurance legislation which may allow insurers to do this.

This article looks at that gap, and what it may mean to you.

Some Basic Insurance Concepts – Valid Contracts, and Appropriate Cover

In order to have insurance that you can draw on, you need to have a valid contract between your insurer and yourself. In addition, you need to ensure that it covers your circumstances. Innumerable people have paid insurance premiums for many years only to find on trying to make a claim that their contract was invalid, or that they were never actually covered for certain events.

For instance, many insurance policies exclude pre-existing medical conditions. A policy with this exception would not cover costs arising from an illness that existed prior to taking out the insurance.

In order to have a valid contract with your insurer, you need to comply with all the obligations Insurance Law places on you as an insured. The primary duty you have as an insured is your “duty of disclosure”. In very general terms, Insurance Law requires you to disclose all relevant material that you know, which may include your HIV status.

Now, before I attempt to flesh out this duty, let’s take a brief look at discrimination law.

Discrimination Law Briefly

Discrimination law imposes certain obligations on insurers. Basically put, it requires insurers to provide people with HIV with insurance on the same terms and conditions as anyone else, unless an insurer can prove that the insured’s HIV condition is relevant to the “insurance risk” in question.

In practice, this means that it is very hard for people with HIV to get certain types of insurance (such as life insurance) because the HIV is relevant to that type of insurance risk. However, most other sorts of insurance (home, contents, travel etc.) should be available on the same terms and conditions as they are to anyone else.

The Gap Between Discrimination and Insurance Law

I mentioned previously a gap between Discrimination and Insurance Law. To illustrate this, take a look at Peter and Bob.

Peter and Bob

1. Peter wants to go to Brazil. He applies for travel insurance. The form asks him if he has any relevant medical conditions, and Peter discloses his HIV+ status. Peter’s insurer refuses to cover Peter because he is HIV+.
2. Bob also wants to go to Brazil. He applies for the same insurance, but doesn’t believe that his HIV is a relevant medical condition. Therefore, he does not tell the insurer about his HIV. Bob gets cover, travels to Brazil and ends up breaking his leg. Bob makes a claim, and the insurance company refuses his claim because Bob did not tell the insurer that he is HIV+.

Now, in Peter’s case, the insurer is refusing Peter insurance because Peter is HIV+. Chances are good that Peter can sue the insurer under discrimination law, because Peter’s HIV is not relevant to the insurance risk.

However in Bob’s case, the insurer is refusing Bob because he (arguably) failed to comply with his “duty of disclosure” under Insurance Law, not because Bob is HIV+. This might mean that Bob can’t sue under Discrimination Law. Now that might sound like typically pedantic legalese, but it’s the type of legalese that can get you locked out of court.

The Duty of Disclosure

So let’s get to the crux of the issue. There’s a question on an insurance form asking if you have HIV. Do you have to say yes?

Note – the form might just as easily ask you to “disclose” any relevant medical condition or matter instead of asking you a specific question.

The answer to that question depends on your duty of disclosure. Read the following slowly, because it’s in legalese and can be quite confusing. The law requires you to disclose to an insurer, prior to entry into an insurance contract, any matter that you know, which you (or a reasonable person in your circumstances would) know to be relevant to your insurer’s decision to accept the insurance risk in discussion.

The bad news is that failing to comply with your duty of disclosure (as Bob may have done) may allow the insurer the right to void your contract. Voiding a contract is like annulling a marriage – it’s basically pretending the “relationship” never happened. No relationship, no rights to alimony. Or in your case, no right to claim on the insurance, and no rights under discrimination law.

And the worse news is this – it’s difficult to describe your duty of disclosure in any plainer language than the legal test. So I can’t give you a clear answer as to whether you have to disclose or not. That depends on the entire contract between your insurer and yourself, including the type(s) of risk covered and their various exclusions, the entirety of your policy document, and your particular circumstances.

Obviously, the complication is trying to look ahead to all the various eventualities that you are trying to insure yourself against, and seeing if your HIV status may, according to the above test, have some relevance to the insurer’s decision to decline your cover or offer it to you on different terms.

In Other Words...

It appears that there is a difference between what Discrimination Law considers “relevant”, and what Insurance Law considers “relevant”. And to repeat, a failure on your part to comply with your “duty of disclosure” under Insurance Law may mean that you can’t complain about discriminatory treatment, or result in any Discrimination complaint you have being that much harder to take out.

A final statement then? You may have to disclose your HIV status. You may have to do so even if there is no obvious connection between your HIV+ status and the insurance you are seeking. Whether you have to disclose or not will depend on the entirety of the contract between your insurer and yourself.

Practically speaking, this disclosure may be necessary to give you the very peace of mind you are seeking through insurance, as a failure to disclose can – notwithstanding a discriminatory attitude on part of the insurer – result in your insurance contract being voided, thus denying you any other remedies including a discrimination complaint.

To be on the safe side, you should disclose your status to the insurer. If the insurer then refuses to cover you because of your status, come and see us and we can look at whether the insurer has breached its obligations under discrimination law. If it has, we can take it up with the insurer on your behalf.

And What Are We Doing about the Problem Itself?

Currently, we are working on submissions and looking for cases to clarify the issues. The law in polite terms is ‘unsettled’, i.e., no one knows exactly how the Courts will treat this discrepancy between Insurance and Discrimination law. We’re currently doing research to argue for change (or clarification) and we would like to hear about your stories if, like Peter or Bob, you have been refused insurance.

In addition, if you have a policy you are signing up for and are confused, we can give you a clearer idea of whether your HIV status would be relevant to the insurer or not, and what you might be able to do to protect any rights you may have under discrimination law.

Contact us!

HIV/AIDS Legal Centre (HALC)
9 Commonwealth Street, Surry Hills, Sydney NSW
Call: (+61) 2 9206 2060
Fax: (+61) 2 9206 2053
Mail: PO Box 350, Darlinghurst, NSW – 1300
Website: http://www.halc.org.au/

Indraveer Chatterjee is a Solicitor with HIV/AIDS Legal Centre (HALC)

This article was reviewed by Nadine Behan, Iain Stewart Brady, and Stephen Walsh.