Current direct-acting antiviral treatments for hepatitis C have the potential not only to cure the disease but to address the discrimination associated with having the virus. However, obstacles remain to the tackling of discrimination in many areas, including the insurance industry.
Our latest article, which emerges from our larger project on addressing hepatitis C-related discrimination in a post-cure world, considers Australian insurance law and practice in the context of hepatitis C. The paper proceeds in three parts.
In the first part, we analyse case law on insurance and hepatitis C. The case law suggests that even inadvertent and unintentional non-disclosure of (a history of) hepatitis C in an insurance application can be deemed to be material to the nature and extent of the risk to be underwritten, and effectively voids insurance contracts. However, this approach may change following recent reforms to replace the duty of disclosure with a duty to take reasonable care not to make a misrepresentation.
In the second part, we examine an Australian-first report on insurance discrimination against LGBTIQA+ populations, including people living with another blood-borne virus, HIV. Whilst there has been no equivalent major Australian study on people with (a history of) hepatitis C, this recent work on HIV, combined with the case law surrounding hepatitis C, raises more general concerns about the responsiveness of the insurance industry to medical and scientific developments related to blood-borne viruses. Through a consideration of this work on HIV, we canvass the possibility that insurance practices and actuarial data regarding hepatitis C might be similarly outdated.
In the third part, we consider proposed reforms to insurance discrimination in the Australian Capital Territory. If enacted, the reforms would require that insurance discrimination (that is, exceptions that allow insurers to discriminate in the provision of insurance products) be proportionate and justifiable, and that insureds be given access to the actuarial or statistical data upon which any discrimination is based. We suggest that this provides a useful roadmap for potential law and policy reforms throughout Australia. We conclude that assumptions about the risks associated with hepatitis C need to be reconceptualised following the advent of direct-acting antiviral treatments, so as to avoid unreasonable discrimination against people with (a history of) the virus.