Insurance, genetic information and the future of industry self-regulation in the UK

This article begins by considering what the moratorium on genetic information and insurance does and how it fits with UK insurance law. I will explain how the moratorium waives the application of the much harsher ordinary insurance law on the disclosure of information to insurers. The second section examines the view that the UK’s moratorium is a credible and flexible solution to the problems of the insurance use of genetic information. I will argue that to assess credibility we need to consider two issues—industry compliance and individual enforcement mechanisms. I will argue that while there is currently a high compliance rate, this is predicated on the science remaining static. We have no good reason to assume that this will remain the case. Further, I will show that an individual has no meaningful way to enforce their position under the moratorium and thus it lacks a necessary feature of a credible solution. When considering the flexibility of the moratorium I will argue that the requirement for regular renegotiation offers only a technical flexibility, which is disadvantageous to an increasingly large minority of the population. In short, I argue that the moratorium is insufficiently credible or flexible to amount to an appropriate regulatory response to the problems of the insurance use of predictive genetic test information. The final section places the moratorium in the context of insurance law reform in the UK, and considers what the current approach to insurance law reform may mean for the future of the moratorium. I argue that the preference for self-regulation has left the UK with an outdated insurance law which is extremely harsh towards consumers. However, with the Law Commission’s recent success in getting the Consumer Insurance (Disclosure and Representations) Act 2012 onto the statute book, it is at least possible that bigger changes are on the horizon that might bode well for a new approach to insurance and predictive genetic information.