Insurers access to clinical data, even after death

Posted by Admin in Medical Insurance | 0 comments

This news was published in the Official Public 28/03/2011 and reproduce in its entirety in italics, to be of public interest (the underlined and bold are mine):

Insurers are able to access clinical data of their customers, essentially the life insurance underwriters, after their death, based on authorization clauses placed in the middle of the insurance contracts.

This form of consent has been enough to Commission on Access to Administrative Documents (CADA), which in many cases, has allowed public hospitals to provide the health data of their patients. However, the National Data Protection Authority (CNIL) has a different understanding, not considering this form of valid consent.

For the access is authorized requires that the customer has signed a specific clause, separated from the rest of the contract, which makes the citizen is fully aware that to allow the consultation of sensitive data.

The Differences of opinion are still creating unequal treatment depending on the health care used, since EVERY may only intervene in cases involving public institutions . The private hospitals are outside the purview of this committee, are therefore, citizens subject to greater protection of their clinical data, when they resort to this sector .

The president of the ICPD, Luis Silveira, regrets the confusion and calls on Parliament to resolve the issue that is making citizens “bewildered and insecure.” The president of CADA, Jose Antonio Goldfish, maintains that the ICPD is not competent to examine access to health data in the public sector, after the entry into force of the new law on access to administrative documents (LADA) in 2007. This is because the law stipulates that access to administrative documents “contain information such as health,” is governed by that law.

Luis Silveira challenges the tacit revocation of the competence of the committee which he chairs, while recognizing that LADA is after the Law on Protection of Personal Data, 1998. “Both are Acts of Parliament and the ideal is that the Parliament legislated in order harmonic. But we must not forget that the Law on Personal Data Protection is the transposition of an EU directive, which states that health data are sensitive and as such will have to be an independent entity created for this purpose, the ICPD, to regulate the access, “said Luis Silveira. He adds: “On the other hand, the Constitution also guarantees the protection of personal data. But a law can not override a directive and the Constitution, even if it is later than these. ”

Paula Lobato Faria, an expert in Health Law and professor at the National School of Public Health, says there is a conflict of laws, but believes a “legal artifice” to say that clinical processes are administrative documents. “If so, we have two laws for the protection of personal data and a specific health and genetic information, which focus exclusively on this issue?” Furthermore, it considers unconstitutional to have different levels of protection in clinical processes only because one is in the public sector and another in private. Paula Lobato Faria argues that the consent must be express and specific access to health data. “Do not just put it in a cake a clause in the midst of an insurance contract” he says.

Louise Neto, constitutionalist and university professor, believes that the authorization clauses tucked in the middle of the insurance contract “is void and can not be considered.” This is because the data protection law requires that consent be free, specific, informed and express. Jose Antonio Goldfish disagrees and says that the clauses are valid until eventually be annulled by the courts, adding that each is preparing an opinion on the issue of consent. A position that neither responsible for the legal services of the Portuguese largest insurer, Fidelity Global, agrees. Isabel Lage believes that consent is a necessary and specific to the data access of health after the death of patients.

Luis Silveira recalls that there is an economic disparity between the insurer and the insured and warns: “Sometimes people think that we try to not allow access to data they are making life difficult, but do not realize what insurers want is eventually arrange in a clinical reason for not paying. ”

While no one would understand, my advice is not to omit anything when you do a life insurance or health, because in case of death, the insurers will sift through everything, even if you had the disease for 30 years and did not mention …