Insurance claim investigations should be regulated by law
Deputy-Ombudsman Pasi Pölönen examined the legal basis of insurance claim investigation activities carried out by insurance institutions and the nature of these activities. Insurance claim investigations are used in examining cases of suspected insurance fraud, among other things. In an investigation, either an insurance claim investigator employed by the institution or an external claims detective may, for example, follow and photograph the insured person in public places in order to ascertain the person's functional capacity.
The Work Accident Compensation Act and the Traffic Insurance Act include provisions on the insurance institutions’ obligation to obtain sufficient clarification of matters. However, no express provisions are laid down on the insurance claim investigations carried out by the institutions.
Under the case-law of the European Court of Human Rights (ECHR), the activities of a claims detective are considered to be the responsibility of the State in situations where the insurance company implements the State’s insurance system as a public authority. Provisions on interference with the protection of private life must be laid down at the level of legislation and with sufficient precision.
According to the Deputy-Ombudsman, the current statutes and the needs to change them from the point of view of protection of private life must be assessed in Finland as well. The assessment would concern the requirements that must be met before it is possible to interfere with the insured person’s right to privacy by means of insurance claim investigations. In addition, the decision-making process, the procedures applied, the scope of the measures and the storage of the obtained information would also be assessed.
The Deputy-Ombudsman was also of the view that the activities of insurance claim investigators in obtaining evidence and clarifications on matters concerning a statutory and obligatory traffic liability or accident insurance constitute a public task and fall under the competence of both the Financial Supervisory Authority and the Parliamentary Ombudsman.
Deputy-Ombudsman Pasi Pölönen's decision no 1672/2019 has been published (in Finnish) on the Parliamentary Ombudsman's website at www.oikeusasiamies.fi.
For more information on the matter, please contact Principal Legal Adviser Juha Niemelä, tel. +358 9 432 3356.