Which Australian insurers accept medicinal cannabis patients?

What the law actually says

There is no rule requiring an insurer to accept or refuse an applicant because of a prescription, and no published 'cannabis policy' anywhere in the market. Underwriting is commercial. What is not unconstrained is discrimination on the ground of disability.

Section 46 of the Disability Discrimination Act 1992 (Cth) is an exemption, and it is conditional. It says Part 2 does not make it unlawful to discriminate on the ground of disability by refusing an annuity, a life policy, an accident or other insurance policy, or membership of a superannuation or provident fund or scheme — s 46(1) — or in the terms or conditions on which any of those is offered — s 46(2). In both subsections the exemption applies only if the discrimination:

• is based upon actuarial or statistical data on which it is reasonable to rely, and is reasonable having regard to the matter of the data and other relevant factors; or
• where no such data is available and cannot reasonably be obtained, is reasonable having regard to any other relevant factors.

Two consequences follow, and neither is obvious from the outside.

First, the underwriter is the one who has to be able to point at something. An answer of the form we do not write cannabis patients is not, on its face, either of the two limbs. The exemption is drafted to permit a decision that has a basis; it is not drafted to permit a rule.

Second, look at what a disability is. Section 4 defines it to include the total or partial loss of bodily or mental functions, the presence in the body of organisms causing illness, malfunction of a part of the body, and a disorder, illness or disease affecting thought processes, perception of reality, emotions or judgment. It then extends to a disability that presently exists, previously existed but no longer exists, may exist in the future, or — paragraph (k) — is imputed to a person.

That last one is the one to remember. An underwriter who treats an applicant as having a condition because they hold a prescription for it is acting on an imputed disability, and imputed disability is inside the Act.

What happens if it goes wrong

This does not make an insurer's decision reviewable on demand, and it is not a reason to expect a different answer. What it does is change what you can usefully ask for.

If a refusal or a loading is put to you as being about the medicine, it is reasonable to ask what it is based on — and reasonable to expect an insurer to be able to answer, because s 46 requires them to have an answer. Complaints about insurance discrimination go to the Australian Human Rights Commission, and disputes about a decision go to the Australian Financial Complaints Authority. Those are different bodies for different arguments and it is worth knowing which one you are making.