Issue 36 Articles, Issue 36: Aug 2009, Issue 37: Sept 2009
Perhaps equally concerning, the study demonstrated that amongst the professionals surveyed there was a lack of understanding of the complexity of the causes and treatment of depressive conditions. Respondents to the survey stated that individuals suffering from depression could be assisted by going on a holiday, going to the pub for a few drinks with friends or identifying and removing the cause of depression.2
Although these remedies may be of assistance for someone who is simply having a normal emotional reaction to setbacks and stressors, they are unlikely to be of assistance and could be counterproductive in the setting of a depressive illness.3 Depressive illnesses are more than simply having ‘a bad day’ and even with optimal treatment can be temporarily or permanently disabling, and without treatment, fatal.
A number of validated treatment methods can be applied, depending on the nature and intensity of the depressive condition. In the absence of proper diagnosis and treatment, long-term physical and emotional health risks and vocational impairment can arise from depressive illness.
With improved community awareness and general practitioner vigilance, people sensibly seek help for emotional problems. In doing so, many are formally diagnosed with a depressive illness and provided with appropriate treatment. However, it is of concern that because of this history of successfully treated illness, some individuals subsequently suffer disadvantage and discrimination when seeking to obtain certain types of insurance.
What is “Depression”?
“Depression” is a generic, non-clinical term which encompasses a number of mental illnesses of variable intensity known as mood disturbances or disorders. It is beyond parameters of this article to provide a detailed study of the diagnostic features of each of the depressive disorders. However, it is helpful to the lay reader to be provided with an overview of the clinical presentation of depressive conditions.
The most serious mood disorder, “Major Depressive Disorder” is comprised by one or more episodes of illness, each being defined by The American Psychiatric Association’s DSM-IV4 as:
- The presence of five or more of the following symptoms during the same two week period where the presence of the symptoms represent a change from previous functions:
o Depressed mood most of the day, nearly every day;
o Markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day;
o Significant unintentional weight loss or gain;
o Insomnia or hypersomnia nearly every day;
o Objective presentation of psychomotor agitation or retardation nearly every day;
o Fatigue or loss of energy nearly every day;
o Feelings of worthlessness or excessive inappropriate guilt nearly every day (not merely self-reproach or guilt about being sick);
o Diminished ability to think or concentrate, or indecisiveness nearly every day;
o Recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without plan, or a suicide attempt or a specific plan for committing suicide.
- The symptoms cause clinically significant distress or impairment in social, occupational or other important areas of functioning;
- The symptoms are not due to the psychological effects of a substance or a general medical condition; and
- The symptoms are not better accounted for by bereavement.
Depressed mood caused by the following conditions is excluded from this definition of Major Depressive Disorder:
- hypomania (Bipolar Disorder or “manic depression”)
- substance abuse (e.g. alcohol, amphetamines or other drugs)
- general medical conditions (e.g. low thyroid gland function).5
This distinction is made because Bipolar Disorder (and the lesser-intensity Cyclothymic Disorders) are characterised by complex symptoms involving both depression-like symptoms and mood elevation or irritability and complicated by dysfunctional behaviours (e.g. excess poorly goal-directed activity; decreased need for sleep; impulsive, unusual risk taking behaviour).6 They are also considered to have possible genetic and seasonal onset differences.
The next most serious mood disorder is Dysthymic Disorder. This condition is usually characterised by symptoms of depressed mood that persist for longer periods (at least two years) but are often not as severe as those experienced during a Major Depressive Episode or Major Depressive Disorder.7 Sometimes, this type of lower grade mood disturbance has been present since adolescence or early adulthood.
Generally speaking, individuals who might be experiencing a depressive illness complain of or exhibit some of the following behaviours:
- Moodiness that is out of character;
- Concentration difficulties or complaints of forgetfulness;
- Increased irritability and frustration;
- Inability to accept personal criticism;
- Withdrawal from family and friends;
- Loss of interest in food, sex, exercise or other pleasurable activities;
- (Possible) Increased use of alcohol or drugs;
- Markedly diminished motivation for work or unusual feelings of being overwhelmed by work;
- Increased fatigue, pain or general ill health; or
- Slowing of thoughts and actions.8
Considerable diagnostic vigilance should be exercised by medical practitioners to exclude underlying general medical conditions. In part, this is the reason that psychologists received referrals from general practitioners rather than ab initio.
Depression and Personal Insurance
The purpose of insurance is to transfer the financial risks associated with the occurrence of a particular event from one person to a group of persons or a corporation better able to collectively bear the identified risk. The insurer, when deciding whether to accept the risk (and the premium price) needs to assess the likelihood of the event occurring. For this reason there are duties on parties seeking insurance to act in good faith9 and to make full disclosure of any matters that may be relevant to the insurer’s decision to accept the risk.10
Mental illness represents a significant proportion of payments made under personal insurance premiums. In 2006, 25% of payments made by insurers under Income Protection policies and 20% of payments made in Total and Permanent Disability claims related to mental health conditions.11 In part, this is a reflection of the prevalence of these conditions in the general population (e.g. the 1997 National Survey of Mental Health and Wellbeing by the Australian Bureau of Statistics identified that 6% time of males and 8.5% of females in the 35-44-year-old age group suffered from depression. Importantly , a Canadian study of 25-44-year-old males and females found mean durations of major depressive illness of 6.4 and 9.2 months respectively12.
It follows that, at least as far as insurers are concerned, individuals with a history of depressive illness represent an increased risk in the areas of personal insurance, that is, life, health, income protection, trauma and disability insurances. It is for this reason that for some time it has become more difficult for those with a history of depressive illness to obtain some types of personal insurance. Discrimination by insurers in this way is specifically excluded from Anti-Discrimination legislation.13 It has also been difficult for individuals who have been insured for income protection or disability to successfully claim and there are sensational United States reports of abuses14.
Since July 2001, the life insurance industry and mental health organisations have been working to improve the prospects of obtaining personal insurance for individuals suffering from mental illness. This collaboration resulted in a Memorandum of Understanding which was first signed in 2003 and most recently updated in 2008.15 A report published in October 200816 provides details of the changes in underwriting practices that have been achieved since the introduction of the Memorandum of Understanding.
Essentially, the data presented in the report indicates that although the issue of standard policies to individuals with a history of mental illness has only increased slightly, the number of applications for Total and Permanent Disability insurance which have been declined has reduced from 50% to 30% and the number of applications for Income Protection insurance which have been declined has reduced from 65%to 25%.17 It is becoming more common, then for insurers to issue policies albeit with increased premiums or exclusions applying to claims relating to mental illness. The authors of the report go on to say that:
“In 2007, the underwriting survey sought to assess what impact the severity of conditions had on underwriting outcome. The results showed that applicants are more likely to obtain cover when the condition is situational or experienced for short durations.”18
In summary, insurers have become increasingly sophisticated in their actuarial assessment of risks associated with depressive and other mental illness; indeed, it may be possible to negotiate personal insurances depending on individual circumstances. Individual insurance companies that are signatories to the Memorandum of Understanding are ING Life, Swiss Re Life and Health, AMP and AXA Australia.19
Depression and Professional Indemnity Insurance
The fact that a diagnosis or history of depressive illness impacts upon an individual’s ability to obtain personal insurance raises questions in relation to Professional Indemnity insurance. Namely:
1. Whether a barrister who has suffered from or been diagnosed with a depressive illness is required to disclose that fact to his or her Professional Indemnity insurer; and
2. Whether an insurer will limit or preclude cover based on such a diagnosis.
I have spoken with Mr Brian Readdy of Suncorp, Mr Robert Cooper of Aon and Mr Jacques Moritz of Marsh and posed those two questions to each of them.
It also raises questions as to the level of disclosure required to the Bar Association of Queensland in relation to the annual issuance of a practising certificate. In the application form, Question 9 specifically enquires “Are you aware of any facts or circumstances which might affect your fitness to practise as a legal practitioner…?”. Similar regulatory enquiries are made to applicants for initial or re-registration in other professional groups (e.g. Medical Board of Queensland).
Disclosure
In relation to professional indemnity insurance, Mr Readdy, Mr Cooper and Mr Moritz all stated that there is no specific question on their companies’ proposal forms relating to the disclosure of clinical information and this would include information regarding depressive illness. Generally, they do not consider disclosure of clinical conditions, including depressive illness to be relevant or necessary.
All three informants stated that the only basis upon which disclosure may be required would be under the general duties of disclosure where the barrister considered or had received medical information to the effect that the condition was so severe that it impeded upon the barrister’s ability to perform his or her professional duties. If that were the case, however, there would be an obvious question over whether the barrister ought to be practicing at all if his or her ability to represent the client is so ostensibly impeded.
Impact on Cover
In an email to me Mr Moritz said that he was able to provide an “absolute assurance that premiums [in professional indemnity policies] are not increased or adjusted based on any medical conditions.” Although Mr Readdy and Mr Cooper did not go quite so far as to provide an assurance, they both expressed similar views that health issues are unlikely to impact upon cover for a professional risk. Further, the latter two insurance company representatives were not aware of any information indicating a correlation between depression and the manner in which a professional person carries out his or her profession.
In conclusion, then, it appears that a history of depressive illness is unlikely to affect a barrister’s ability to obtain Professional Indemnity insurance. However, the presence of depressive illness should always be considered by a barrister in relation to making a full and accurate disclosure to both insurers and regulatory bodies. If necessary, advice should be sought from treating medical practitioners and senior members of the Bar.
Although it has certainly been the case in the past that personal insurance has been denied to those with a history of mental illness, recent co-operative efforts between bodies representing mental health consumers and those in the insurance industry lay grounds for hope that this type of insurance is no longer entirely beyond reach.
Patricia Feeney
Footnotes
- Australian National Depression Initiative
- Beaton Consulting Annual Professions Survey Research Extract October 2007; Law Institute of Victoria Journal “Survey reveals depth of depression problem” June 2007; Law Institute of Victoria Journal “Depression figures prominently in the law” September 2007
- Dr Nicole Highet, Deputy CEO beyondblue, Law Institute of Victoria Journal “Survey reveals depth of depression problem” June 2007
- American Psychiatric Association “Diagnostic and Statistical Manual of Mental Disorders”th edition p327
- DSM-IV 4th edition p339 – 344
- For details of the diagnostic features of the full range of mood disorders see the chapter on “Mood Disorders” at p317 of DSM-IV
- DSM-IV 4th edition p345 – 346
- Law Institute of Victoria Journal “Survey reveals depth of depression problem” June 2007; see also www.beyondblue.org.au
- Insurance Contracts Act 1984 (Cth) s13
- Insurance Contracts Act 1984 (Cth) s21
- “Working towards positive life insurance outcomes for mental health consumers” Investment and Financial Services Association, Mental Health Council of Australia and beyondblue: the national depression initiative, October 2008
- Patten, SB (2001) The Duration of Major Depressive Episodes in the Canadian General Population. Chronic Diseases in Canada v22 No 1. pp 6-11.
- Anti-Discrimination Act 1991 (Qld) ss 74 and 75; Disability Discrimination Act 1992 (Cth) s46
- e.g. http://www.insulttoinjury.org/, accessed on 15 March 2009.
- Memorandum of Understanding between Mental Health Sector Stakeholders, the Investment and Financial Services Association and the Financial Planning Association, www.beyondblue.org.au
- “Working towards positive life insurance outcomes for mental health consumers” above
- “Working towards positive life insurance outcomes for mental health consumers” figure “Change in Underwriting outcomes for people with a mental health condition” p11
- “Working towards positive life insurance outcomes for mental health consumers” p13
- “Working towards positive life insurance outcomes for mental health consumers” p10
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