The Medically Examined Applicant for Private Insurance and his/her Right to Informed Consent: A Comparative Analysis

Abstract:

Within the context of health and insurance law, an important question that arises is “to what extent is an applicant for private insurance truly capable of giving his/her ‘free’ and informed consent for a medical examination?”.

It should be borne in mind that it is the private insurer who requires a medical examination in order to gather medical information, and, moreover, that the insurer will not be inclined to conclude or carry out an insurance contract without this medical information.

A distinction has to be made between not being free by legal coercion and not being (completely) free by factual circumstances. Exercising the right to informed consent involves exactly weighing up the consequences of the decision. Hence the applicant must be put in a position of being able to weigh up the consequences and take them into consideration.