Legal Clinic: My insurer violated my privacy. Can I sue?

Depressed man

My doctor diagnosed me with severe depression.

Photo credit: Pool

What you need to know:

  • Contracts in general afford us a thin line between private and public information.
  • At the point of breach, such information is made public while redress is pursued.
  • What is considered private could be shared within parameters that do not jeopardise the parties involved, such as the scenario depicted through an insurer and insured relationship.

Hello,
My doctor diagnosed me with severe depression but after that, my medical insurance provider kept calling me to ask me personal questions, as if it was somehow my fault or controllable. Or as if they were doubting the veracity of my doctor's diagnosis. Are they allowed to do this? I felt like my privacy was being violated.


Dear Reader,
Such concern and particularly one raised by a person likely suffering mental illness must appeal to the ears of insurance companies, first as a likely disregard of the nature of insurance contracts, that are Uberrimae Fidei (of utmost good faith). Second, this could indicate the failure of insurance staff to observe ethics while delivering their services, and importantly a blot within the communication policy framework when addressing clients. Such incidents, if left unattended could easily injure Article 43 (1) of the Constitution, which gives every person the right to the highest attainable standard of health, and includes the right to health care services. On whether insurance employees are allowed to prod clients about doubtful health records in a way that humiliates, we cannot confidently and with finality explain. The bias, however, since their opinion is not sought, we can conclude that their behaviour amounted to professional disgrace. Should that be the case, then their action affronted Article 28 of the Constitution that speaks to inherent dignity? 
One aspect of your concern tests the work ethic propagated in common practices amongst actors in the insurance sector. The other allows us to confront the fragile balance required of insurance companies as they offer reprieve as a common good service to their clients, yet the propulsion to promote business for which their construction is about. The behaviour of the employee, seeking to draw an understanding of your condition, though boisterous, could just be a reflection of the boardroom anxiety to run viable enterprises, a personal mission to excel or an indication of bad practices normalized over time. Awareness that every person’s privacy is guaranteed under the Kenyan Constitution is necessary. Article 31 (c), provides for every person the right to privacy, which includes the right not to have information relating to their family, or private affairs unnecessarily required or revealed. Notwithstanding, on certain medical cover contracts a part of this fundamental tenet of the law is waived to employ the requirement tag to access information, in what can be referred to as material disclosure obligation, because the construction of insurance contracts is highly reliant on the principle of utmost good faith. 
Contracts in general afford us a thin line between private and public information. At the point of breach, such information is made public while redress is pursued. What is considered private could be shared within parameters that do not jeopardise the parties involved, such as the scenario depicted through an insurer and insured relationship. However, this does not in any way relegate the importance of confidentiality between you and the insurance company. This context should remind us that specific terms in medical cover contracts are construed to imply trust, which mainly links the underwriter and policyholder. While operationalising trust, there has emerged fundamental departure from the principle of utmost good faith, through a dichotomy of mistrusts; first, insurers have fallen victim to fraud, such as collusion between the policyholders and health service providers, inflated bills from hospitals and clinics, hospitals making patients take unnecessary tests, impersonation or dual membership by policyholders and pharmacies; second, policyholders have over time accused insurance firms of non-payment of their claims, with the considerable number remaining unmet for reasons that cannot be fully discussed in this text. This makes material disclosure central in insurance contracts. Justice Maureen Odero on 02 October 2020, in her Judgement in Civil Case number 421 of 2008, demonstrated the importance of material disclosure.
Be it as may, every consumer is protected by the Constitution at Article 46, besides provisions in attendant statutes such as the Consumer Rights Act (2012) and the Insurance Act (Cap 487) of the laws of Kenya. The Insurance Act establishes the Insurance Regulatory Authority as a government agency with a key mandate of protecting and promoting the interests of policyholders and insurance beneficiaries. In seeking to protect consumers, the Authority has over time continued to receive and address complaints from consumers of insurance services. It is our estimated opinion that an employee’s lack of decorum, even with a good law in place while doing their work should not be construed as employers’ absence of work integrity. 
We are optimistic, that the various proposed legal reforms within the Mental Health Amendment Bill will cover and cushion people living with mental illnesses from blatant discrimination and other abuses. Your unspoken demeanour which exudes fear, mistrust, anxiety and a heightened sense of vulnerability, should act as a catalyser for parliamentarians to enact this law as first as possible. 

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Mr Mukoya is a lawyer with over 17 years of experience. He’s the Executive Director of the Legal Resources Foundation. Legal query? E-mail [email protected]
 

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