Your decision to apply for life insurance or disability insurance is voluntary. Equally, the insurance company does not have a duty to accept your application. Before entering into an insurance contract, the company needs information from you to help assess the risk to the company of issuing a contract. This information also helps the company to decide what premiums to charge. Insurance companies check applicants for serious diseases (e.g. diabetes), or habits (e.g. smoking), that may affect their life expectancy (how long you are likely to live). This is done through questionnaires, medical examinations, urine, blood and other tests.

HIV Testing Protocol

The new ASISA 2013 HTP encourages the insurance industry to provide life cover HIV positive applicants. The new protocolis not a binding agreement but a best practice guideline. Nonetheless, many people are refused life insurance when they test HIV positive.

The Right to Proper Counselling

The ASISA HTP, states that an applicant has the right to give informed consent. The Protocol says the insurer must cover:

• Costs of pre-test counselling
• One session of post-test counselling.

This means it is your right to ask the broker for proper counseling before and after the HIV test.

Challenging Violations of Your Rights

If you are asked to sign a consent form without pre-test counselling and informed consent, this violates your right to autonomy (to make decisions for yourself).

If you do not receive pre- and post-test counselling, you can make a civil claim against the company.

Applicant’s Duty to Discloser Material Facts

When entering into an insurance contract it is important to fully disclose one’s medical history in order for a claim not to be rejected.

Case Study:

Southern Life Association v Johnson (1993)

Mr Johnson applied for life and disability cover. When he applied, he was asked to say if he had had a blood test in the last 5 years. He did not disclose a blood test that was carried out on him to decide if he had a blood disorder. He was not aware that he suffered from the blood disorder. No symptoms had developed at the time of the application and he believed that he was in good health.

Only later, when his health got worse, his doctor told him what the problem was. The insurance company decided not to pay him the disability cover.

The Supreme Court decided that Mr Johnson should have disclosed the fact that he had the blood test.

The undisclosed fact was ‘material’ and thus the company was allowed to refuse to make any payment under the insurance policy.