GPs must respect patientsÍ confidentiality but are also obliged to tell the truth to insurance companies. Dr Gerard Panting explains how you can do both
Assessments of the risk, and therefore the premiums applicable to individuals seeking various forms of insurance, are based on medical information collected from a number of sources: the applicant personally, the GP or an independent medical examiner, reports from specialists and the results of specific testing.
A request for information from an individualÍs GP can place the doctor in a dilemma. He or she is professionally obliged not to submit false or misleading information but the patient will be naturally anxious that nothing prejudicial is disclosed unless absolutely necessary.
New guidelines published jointly by the BMA and the Association of British Insurers (ABI)1 should simplify what GPs should and should not disclose about their patients to insurers.
In summary, the guidelines say that doctors are not required to release all aspects of a patientÍs medical history but should restrict themselves to those matters that are relevant, provided, of course, that they have the patientÍs consent. In particular doctors should not release all aspects of a patientÍs sexual history; they are no longer required to disclose single and even multiple episodes of sexually transmitted infections.
Insurance companies should no longer ask whether patients have been tested for HIV, hepatitis B or hepatitis C. However, they may still ask whether an individual has had a positive test result, is awaiting a test result or is undergoing treatment for HIV, hepatitis B or hepatitis C.
Some patients may make sure that their doctor is kept in the dark by seeking HIV and other tests through private clinics and ensuring that the fact that they have been tested does not get back to their GP.
Only the person applying for insurance is in a position to answer fully questions relating to lifestyle and medical investigations.
Some practices have long held a policy not to answer lifestyle and related questions, refusing to complete that part of the GP report and referring the insurance company back to the applicant for information on these issues. This approach has enabled GPs to avoid undermining the trust and openness at the core of the doctor-patient relationship.
As insurance contracts are contracts of the utmost good faith, applicants have a legal duty to reveal all information material to the policy, whether or not that information is specifically requested. Withholding information would normally result in the policy being declared void.
Insurers have developed a standard general practitioner report form but its contents have not been agreed by the BMA, which has continuing concerns about the validity of consent for its completion and of questions about lifestyle and family. However, it is hoped that a revised form will be agreed in due course.
To ensure that no extraneous information is included, submitting original or copy medical records in lieu of completing a form is deemed inappropriate and likely to be a breach of the Data Protection Act 1998. The Act requires that sensitive personal data (which includes all medical information) are only processed under certain circumstances, which are most unlikely to apply when information is disclosed en masse.
Confidential medical information may be disclosed only with appropriate authority and in this context that means the consent of the patient. The GMC requires doctors to obtain or seek written consent to disclosure from the patient or a person properly authorised to act on the patientÍs behalf.
For consent to be valid, the patient must understand the implications of providing consent to disclosure and if there is any doubt, the issue should be clarified by the doctor directly with the patient before any disclosure is granted.
Applicants now have a right of access to reports written about them, whether completed by their own GP or an independent medical examiner.
Under the Access to Medical Reports Act 1988 applicants have a right of access to any report written about them by their GP before it is despatched. They may also request alterations or append comments of their own. Once it has been sent, the doctor responsible for completing the report is required to keep a copy for six months to which the applicant has right of access. Under the Data Protection Act 1998 applicants now also have the right to see reports completed by independent medical examiners and to request correction if any part is inaccurate, misleading or incorrect.
Genetic information and family history
The BMA/ABI guidance emphasises the principle that insurance companies should ask only for information relevant to the insurance product applied for. This aspect of the guidance deals with disclosure of information relating to sexually transmitted diseases, as set out above, lifestyle questions and genetic information.
With regard to genetic information, the guidance states: "The use of the results of genetic tests by insurers is tightly controlled. A genetic test is defined as ïan examination of the chromosome, DNA or RNA to find out if there is an otherwise undetectable disease-related genotype, which may indicate an increased chance of that individual developing a specific disease in the future.Íî
It says that applicants must not be pressurised to undergo a genetic test to obtain insurance, and insurance companies may not ask for genetic testing results for applicants applying for policies below the threshhold levels of £500 000 for life insurance or £300 000 for other forms of insurance. Even if the insured sum is higher, insurers may take this information into account only if the GovernmentÍs Genetic and Insurance Committee has held that it is reliable and relevant for insurance.
Disclosure of family history is another bone of contention. Many insurance application forms ask individuals to provide details of any first degree relatives who have died or suffered from diseases with an inherited component, for example heart disease, stroke, multiple sclerosis, diabetes or cancer.
The guidance states that: ñIn order to ensure that there is no breach of family membersÍ confidentiality, doctors may choose not to complete this section of the general practitionerÍs report if they wish. Doctors should, however, report the results of any tests or investigations they have undertaken on applicants because of their family history, whilst bearing in mind the limited moratorium on the use of genetic information in insurance [as set out above].î
The guidance warns that under no circumstances should a doctor reveal information about an insurance applicantÍs family if the information did not come direct from the applicant.
The BMA and ABI have agreed that information can only be sought after a patientÍs death if there are reasonable grounds to believe that the relevant information may have been withheld at the time the policy was taken out.
The duty of professional confidence does not end with death. Authority to disclose information relating to a dead individual may be obtained from the executors of the estate. However, insurance companies often argue that consent signed by an applicant during life remains valid after that individualÍs death, and seek disclosure on that authority.
As such enquiries are likely to be made only if there is a question mark over the disclosure of information given at the time of application and there is, therefore, a significant risk that the policy might be declared void, obtaining the consent of the ýxecutors might be prudent for all concerned. However, the BMA/ABI guidance does not recommend this step. Instead it recognises that under certain circumstances, individuals with a claim arising from the death of another person may have a statutory right under the Access to Health Records Act 1990 to disclosure of information necessary to satisfy the claim.
Nevertheless, the Act states that information must not be released if the patient, when alive, had indicated that they would not want that information released, or disclosure would involve information about third parties whose consent had not been obtained, or disclosure of that information would be likely to cause serious harm to the mental or physical health of another individual. In the event of an impasse, this may be an issue for the courts to determine.
Ultimately, it is for the doctor to decide what should and should not be disclosed in any given circumstance. If there is any suggestion that excessive information has been disclosed or consent exceeded, the doctor must be in a position to justify what he or she has done.
- British Medical Association and Association of British Insurers. Medical information and insurance. London: December 2002. Available online at: www.bma.org.uk/ap.nsf/Content/MedicalInfoInsurance