Spain does not make progress on the right to be forgotten for patients who have overcome cancer

Francisco Domene signed his mortgage four years ago, with the illusion with which one signs the things that build a life. But when he wanted to take out the insurance that the entity requested as a requirement, he was met with a ‘no’ for an answer. The reason was a lymphoma he had been diagnosed with almost three decades earlierwhen he was only four years old, and which he overcame. Francisco is healthy, cured, and although he knows better than anyone that that experience has left an indelible mark, he is angry to discover that it will also be a burden that will accompany him all his life: “More than 20 years after the definitive discharge you see that it has marked you for life, not only in your memory, but also in your personal goals”, he laments.

Like Francisco, about two million people have overcome a disease that takes many others along the way. Among its after-effects, there are those that are more invisible and even unrelated to health, but which prevent them from fully recovering that reconquered life. As the obstacles when it comes to taking out a loan or taking out personal insurance.. The Special Commission on the fight against cancer of the European Parliament called for the guarantee of the ‘right to be forgotten’ to oncology patients when ten years have passed since they finished their treatment, or five if they were diagnosed as minors. Under this name, the ‘right to be forgotten’, what is intended is that the insurers and banks cannot take into account their medical history to discriminate against themsomething similar to what already happened in 2011 when a ruling by the EU Court of Justice prohibited companies from setting bonuses based on gender.

All European countries will have to guarantee the Oncological ‘right to be forgotten’ by 2025.but in Spain is still a pending issue. The European Commission produced a report in which it was found that there is no government policy on this issue here. Moreover, although the National Cancer Plan “places special emphasis” on the care of cancer survivors, “it has prioritized health and social care needs first”.

Lucia – fictitious name – wanted to take out life insurance when she signed her mortgage, but she had barely been cured of cancer for two years. Still undergoing check-ups and adapting her life to new routines, opted to lie on the health questionnaire.. She acknowledges that, should she need it, she would probably not be able to rely on insurance to which it would be very easy to prove her deception, but it was the only way to access the mortgage at the time. “Really what made it more difficult for me was the implicit message, that I’m a long shot, that companies are not betting on me being alive long enough to be able to pay”, the young woman explains.

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Testimonials like this do not surprise Clara Rosàsmanager of the Catalan Federation of Organizations against Cancer (FECEC). “There are people who have told us that the mortgage is in the name of their partner because there was no way to access that product, is the reality with which they find themselves,” he explains. And the psychological burden is one more addition to the burden already carried by those who overcome the disease: “You are constantly reminded that you have had it”. The FECEC is one of the associations that is pushing hardest for the oncologic ‘right to be forgotten’ to become a reality in Spain, but “we are still very green,” says Rosàs. Belgium, France, Netherlands, Luxembourg and Greece. have regulations that protect patients, and Italy Was working on a standard before the fall of the government.

The impenetrable wall of discrimination

“We’re not really talking about removing some history from a person’s medical record,” explains Luis Pedro Gracietalawyer expert in insurance contracts, “but not to be obliged to count them, as happens in France, or that even if they are reflected, they are not taken into account as the only excluding factor“.

The jurist applauds the initiative of the European Parliament and believes that “holes have begun to open in this impenetrable wall of discrimination on health grounds.” In Spain, insurance companies exclude elderly, disabled or sick people. “We have it assumed as the most normal thing,” the expert points out. In 2018, the Insurance Contract Law was reformed to include a clause that would prevents “discriminating against people who have HIV AIDS or other health conditions.”. These other health conditions are the loophole through which cancer could slip, but in the same text the Government committed itself to present a draft law to specify which diseases are included in the clause within a year, but four years have passed and “it has not yet been fully developed”, as the European Commission recalls.

With the current law in hand, there is a tool against discrimination of oncology patients. In the jurist’s opinion, the company has the right to know all of a person’s health history in order to grant him or her personal insurance, but it has to justify that the health condition is relevant to the contract or that it poses a risk that he or she cannot assume. It is there, in the risks, where the essence of the matter lies: insurers have the obligation to be economically viable and solvent in order to be able to provide the services granted should their clients need them. But for that they need a portfolio of policyholders who a priori will not need their services.

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Rosàs insists that “prognoses and survival rates have improved a lot for many types of cancer” and this has to be reflected in this right to forget. There is scientific evidence that a person who overcame cancer ten years ago no longer has a higher risk than someone who has not had it. The FECEC advocates for Spain a system similar to the French one: for loans or mortgages of up to 200,000 that can be repaid before the age of 60, no health questionnaire is required.

Insurers call for flexibility

On the other side, the European insurance employers, Insurance Europeshows his resistance and has called for flexibility in pricing the risks of each type of cancer: “If the premium is no longer linked to the risks, some consumers will pay too much in relation to the risk they bring to the insurer, while others will pay less in relation to the risks they present”.

Gracieta insists that the main problem was with the banks, which require insurance to guarantee payments in order to grant credit. “The buck is passed to the insurers, who could find themselves with uninsurable people with justified criteria that the risk is not assumable. But, why doesn’t the bank grant the credit? One thing should have nothing to do with the other and this has been the root of the problem,” defends Gracieta. In France, the issue was clarified by a pioneering law on the right to oncological oblivion, which prohibits anyone who needs insurance to access financing from asking about health.

The FECEC signed an agreement with the Institut Lliure de Médecine to offer access to medical services in the private sector to people with a history of cancer who could not obtain health insurance because of their medical history.

Gracieta recalls that the State has at its disposal mechanisms to avoid leaving the issue only in private making “contributions” to cover what the insurers could not assume, if necessary. Rosàs, on the other hand, insists that in the countries that have already regulated this issue it is the companies that have taken it on, “because there is scientific evidence to support the fact that the risk is minimal”.

Lucía applauds the possibility of the “right to be forgotten” becoming a reality in Spain, but believes that the measure should have a more appropriate name, such as “right to continue living” or “right to be forgotten”.right to fully enjoy the recovered life.”. Because what is urgent, which is research to save lives, should not replace what is important, which is to restore to them the quality that medical advances can already provide.

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