This spring, concerns that Canadians may be inadequately protected against genetic discrimination bubbled up again. The Canadian Broadcasting Corporation reported on a commentary in the Canadian Medical Association Journal warning of risks if Canada’s Genetic Non-Discrimination Act was overturned. The CBC story ran with the headline of “Door will open to genetic discrimination if act protection Canadians is overturned, genomics expert says.” The story referred to a legal challenge to the constitutionality of the Act that is before the Quebec courts. On Thursday, I will post more about the Genetic Non-Discrimination Act.
News reports and opinion pieces on genetics and the law tend to focus on the potential for insurers and employers to use genetic information to make decisions about individuals in a manner that advocates consider to be unfair. What is interesting is that scant attention is paid to how genetic information is already being used in the adjudication of legal rights. Genetic information is frequently used in the adjudication of worker’s compensation claims. What we see in those cases is a complex relationship between genetic information and legal fact-finding.
It seems that genetic predisposition can be used either as a sword or a shield. Genetic predisposition can be used to try to tip the balance of probabilities that some external act (e.g. exposure to raw milk at work) combined with a genetic predisposition (say to Chron’s disease) to result in a workplace injury (the manifestation of Chron’s disease) in order to argue for workplace disability benefits.
By contrast, genetic predisposition can sometimes be used as a shield to show that the plaintiff’s injury was from a separate cause. The defendant doesn’t need to compensate the plaintiff for the negative effects of a pre-existing condition (e.g. genetic predisposition of hip problems) that casts doubt on whether there is a connection between the harm (hip injury) and the individual’s employment because the individual would have likely experienced that injury irrespective of the individual’s employment.
A great summary of cases can be found in a 2013 article published in the McGill Journal of Law and Health titled “Understanding the Use of ‘Genetic Predisposition’ in Canadian decisions.” In that article, the authors suggest that evidence of genetic predisposition was used to “fill in the connection” where the causal factor leading to the injury is not clear. What the authors found in the case of workplace disability claims is that genetic information is often used to tip the scales one way or the other where other evidence casts doubt as to the link between the workplace exposure or event and the worker’s condition. Genetic predisposition either assists in justifying refusal of the claim based on the possibility that the condition had an alternative cause (genetics used as a shield) or to support the plausibility of the connection (genetics used as a sword). The authors state:
“This occurs because scientific uncertainty in light of the multiple risk factors and mechanisms of disease, combined with the general principle that the burden of proof rests with one of the parties on a balance of probabilities, render it sufficient (and economical) to resolve the issue of disease causation without thoroughly examining the genesis of the condition in question. The resolution of claims in this way leaves open the possibility that genetics will stand in for “hidden causes” of disease.”
I did a quick test to see if there has been any change in the last year in how genetic predisposition has been used, following the methodology in the 2013 study. The 2013’s findings seem to continue to be relevant.
It should be noted, however, that the authors were concerned with the “geneticization of health and disability”, which leads to overemphasizing genetic factors and ignoring or reducing attention to other socio-economic determinants of health.