New laws to combat genetic discrimination on horizon: report

A new law firm study says it’s likely Canada will enact laws to combat genetic discrimination. Genetic discrimination is an issue that’s increasingly come to public attention, after huge changes in medical practices and technology.

The third annual report from Borden Ladner Gervais LLP, “Life Sciences Legal Trends in Canada,”  has a section by partner Jeffrey Graham that says “while Canadian human rights laws, insurance laws and privacy laws do contain provisions that seek to minimize unjustifiable discrimination and prevent improper access to or use of personal information, at present no laws in Canada provide specific protection against genetic discrimination.”

“The tremendous and increasing power of research tools related to the human genome are increasing the potential for genetic information related to individuals to be deployed for diagnostic and therapeutic purposes,” says Graham, the head of BLG’s national life sciences group.

“[T]here is a concern that science, which leads to the generation of this additional personal information, is not adequately protected in existing laws and could be used to prejudice individuals in the workplace and insurance environments without adequate controls or protections being established.”

The report covers areas including outsourcing, procurement and cybersecurity, cyber risk management, and the Canadian Competition Bureau’s new update of the Intellectual Property Enforcement Guidelines.

Genetic testing — which the report describes as “the analysis of a person’s chromosomes, genes, or gene products (proteins) to identify the presence of specific traits” — is accessible to Canadians interested in learning more about their predisposition to certain health issues, or for diagnosis.

“Although the long-term ethical and legal consequences of genetic testing for employment matters, insurance contracts, and preventive medicine and treatment are not yet fully known, cases of alleged genetic discrimination have been emerging in different parts of the world, prompting calls from concerned citizens for government action,” says. the report.

It also notes the federal government’s “protection against genetic discrimination act” died last year, as a result of the federal election being called.

The report says a bill that includes criminal sanctions for discrimination was passed in the Senate to prevent genetic discrimination and has gone to the House of Commons.

“At this point in time, the timing of federal legislative changes is uncertain,” says Graham. “If the current bill is adopted in its current form, it may not be necessary for parallel or complimentary provincial legislative changes.”

It’s important to note that new rules have effects for the insurance industry, which is usually governed by laws at the provincial level, states the report.

“Although provincial human rights codes may already provide some protection for individuals from genetic discrimination, they also include some exceptions that may allow automobile, life, accident or sickness or disability insurance providers to make distinctions based on an applicant’s age, sex, marital status, family status, or physical or mental disability,” says the report.

“A discriminatory practice in insurance may be justified on reasonable and bona fide grounds — in other words, if it is based on accepted and sound insurance practices and if no practical nondiscriminatory alternative exists.”

The report says insurance providers do not now require genetic testing to provide insurance but do ask people who want insurance if they’ve been tested in the past, and, if so, to disclose the results.

“The insurance industry has expressed concern that insured persons who learn, after taking a genetic test, that they are at high risk for a genetic disease could knowingly take out policies for large amounts of additional coverage without insurers being aware of any increased risk,” says the report.

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