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My company requires me to have life insurance for which I recently moved out of the provider's "free cover limit". Because of this I now have to submit to certain medical tests in order to have full cover.

In the document I received are the following lines:

Your rights are
1 - Not to be tested without your free and informed consent
2 - To refuse to take the test. If you do this you application will be denied.

I am not really interested in having the tests done, but I am required to have the insurance and am thus required to have the test done. Doesn't this mean that I cannot give my free consent and am, in fact being coerced into giving consent?

  • What jurisdiction? – phoog May 21 '18 at 7:14
  • South Africa. Although answers in other jurisdictions are also fine – DeadlyEmbrace May 21 '18 at 7:15
  • I really don't know the answer, but I suspect that it boils down to the question of whether your employer can require the insurance as a condition of employment. After all, you can always leave the job if you don't want the test. Some companies have a clear need to require certain employees to submit to medical tests (airline pilots, for example), while most probably do not. An airline pilot who withholds consent to required tests can reasonably be fired. Is the requirement to carry the insurance reasonable in light of the job? – phoog May 21 '18 at 17:33
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Typically, informed consent within the context of medicine is applied from three points-of-view: legal, ethical, administrative. As a whole, generally, informed consent discussions include four needed parts:

  1. decision-maker, typically the patient or her guardian/person with power of attorney with capacity to make decisions
  2. physician disclosure with enough info to allow the decision-maker to make an informed choice.
  3. demonstration by decision-maker that she understands the info.
  4. a freely-given authorization of the treatment plan by the decision-maker.

Whether or not your employer may require a certain insurance or whether or not you live within a certain area that allows you to forego certain tests is not of concern to the concept in #4. You still quite clearly have both the opportunity to understand the procedure that will be performed and the ability to make a choice about whether or not you have them perform that procedure.

  • The document you link to is about consent to clinical treatment. This questions is not about treatment but whether to consent medical tests in order to get full insurance cover. (Presumably, if certain tests are bad, full cover will not be given.) – Free Radical May 21 '18 at 13:26
  • There’s no distinction there. The question is about informed consent in the realm of healthcare and the law. – A.fm. May 21 '18 at 13:27
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Doesn't this mean that I cannot give my free consent and am, in fact being coerced into giving consent?

I do not know about the law in South Africa, but under EU law: Yes, this would be interpreted as you being coerced into giving consent.

This follows from the GDPR Receital 43. Here is the relevant part:

Consent is presumed not to be freely given if [...] if the performance of a contract, including the provision of a service, is dependent on the consent despite such consent not being necessary for such performance.

Here "necessary" specifically means "necessary for performing the service" not "necessary for the commercial purposes of the controller".

In your case, the tests are not in any way necessary for providing you with insurance. The only reasons for the tests is to protect the commercial interests of the company. Presumably, if you consent to the tests, and they show that providing you with full coverage would be a financial risk for the company, you will be denied full coverage.

I.e.: Given the GDRP definition of freely given consent, it pretty obvious that this description of your rights:

Your rights are [...]
To refuse to take the test. If you do this you application will be denied.

invalidates any pretense of consent being freely given.

The premise that lies at the root of this question is a very interesting one, that AFAIK is handled different in different jurisdictions.

In the country I live, the majority think that it is politically desirable that all citizens have full coverage, pay the same, and that pre-existing conditions should not exclude anyone from full coverage. This means that insurance companies cannot use the refusal to undergo tests, or refusal to fill in self-declaration questionnaires as grounds to deny someone full coverage, or to charge higher premiums. (In other countries, such as the USA, the majority view is different).

Notice: The GDPR only apply in Europe. If the definition of "freely given consent" is South Africa is different, this may be of no practical use to you.

  • How is consent as defined by the GDPR relevant to consent for a medical procedure? The GDPR presumption regarding free consent would apply to any consent given with respect to the data generated by the test, but it would not apply to the consent to have the test performed in the first place. – phoog May 21 '18 at 17:29
  • My understanding is that the test in question for all practical purposes is about getting data about the data subject's health. To me, that means that the GDPR's defintion of "freely given consent" is relevant. ... – Free Radical May 21 '18 at 17:44
  • ... Let's instead apply the definition offered by A.fm. in his/her answer. This definition basically says that "freely given" means that you're told the facts and then are free to decide, as long as you know what the consequences are. In this case, saying "yes" means that any preexisting condition will be exposed (so if they are present you will be denied coverage), and saying "no" means that your application will be denied (so you will be denied coverage). It is this type of Catch-22 situations the GDPR is supposed to prevent. – Free Radical May 21 '18 at 17:47
  • But isn't the real point that the coverage is a requirement to keep the job? Doesn't your reading of the GDPR imply that no employer in Europe can require medical tests as a condition of employment? – phoog May 21 '18 at 17:59
  • "Let's instead apply the definition offered by A.fm. in his/her answer. This definition basically says that "freely given" means that you're told the facts and then are free to decide, as long as you know what the consequences are." Yes, @FreeRadical, precisely. phoog's comment on the question is the right idea, too. When someone is talking about healthcare and they mention informed consent, they are talking about patients rights and standards the care providers should operate under when performing certain procedures, etc. It's not about online data protection laws. – A.fm. May 21 '18 at 19:45

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