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The Need of Including Mental Illness Under Medical Insurance: An Analysis of the Recent Supreme Court PIL

The Need of Including Mental Illness Under Medical Insurance: An Analysis of the Recent Supreme Court PIL

Introduction

According to the interpretation of World Health Organization (WHO), mental health is a “state of well-being in which the individual realizes his or her own abilities, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to his or her community” [1] Certainly, mental health is an integral part of the well-being of a person’s health and therefore, it is one such dimension of the right to life with dignity. In India, Mental HealthCare Act, 2017 (MHC Act) is the grundnorm which ensures mental healthcare and services for persons suffering with mental illness and which further safeguard, promote and fulfil the rights of such persons during delivery of mental healthcare and services.

Recently, this legislative Act has been under spotlight because of the notice issued by a three-judge bench of the Supreme Court in a recent Public Interest Litigation that was filed. The notice was issued in a plea filed before the Supreme Court under Article 32 seeking directions from the Central Government and the Insurance Regulatory Development Authority (IRDA) to all insurance companies to extend medical insurance for the treatment of mental illness.

According to the 2017 MHC Act, mental illness is defined as “a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by sub-normality of intelligence”.

The petition was filed in order to provide relaxation to the financial hardships faced by the victims of mental illness as they have to bear the cost of expensive treatments irrespective of having health insurance. The petition argues and attacks the inherit biasness of IRDA that is resulting in discrimination between other patients and patients suffering from mental illness in spite of having specific provisions in the Act   .

Violation of Section 21 of the MHC Act

The petitioner has raised the issue that there has been a gross violation of Section 21 of the MHC Act. Section 21 of the Act deals with the right to equality and non-discrimination, and this section is covered under Chapter V of the Act that provides for the rights of persons with mental illness. The section states that there shall be no discrimination between patients suffering from physical illness and those suffering from mental illness. Further, sub-section 1(b) of Section 21 articulates that all such emergency facilities and emergency services which are provided to a person suffering from physical illness shall be provided to patients of mental illness and such facilities should be of the same quality and availability.

Nonetheless, the main point of the argument is the sub-section (4) of Section 21 which mandates all the health insurers to make provision for medical insurance for the treatment of mental illness on a similar basis which is currently available for the treatment of physical illness. It means that health insurance providers are bound to include the treatment of mental illness in the list of illnesses including in the package of health insurance and there is no escape from that. The petitioner has also argued that section 21(4) has its roots laid down under Article 25(e) of the United Nations Convention on the Rights of Persons with disabilities which enunciates  that there shall be no discrimination against persons with respect to the provision of health insurance.[2]

On lines of Section 21(4), IRDA had issued a circular back in August, 2018 to all the insurers to comply with this specific provision. The circular stated that “all insurance companies are hereby directed to comply with Section 21(4) provision of the Mental HealthCare Act, 2017 with immediate effect”.[3]  However, as per the RTI filed by the petitioner dated 10/01/2019 and the report findings from various other sources, it has been brought forward that till date there have been no insurers who have implemented the order of IRDA as disseminated through August, 2018 circular and further there have been no insurers who have been penalized for disobeying this very mandate. Therefore, the petitioner argues that IRDA has been reluctant in taking actions and has been fostering discrimination against persons with mental illness as IRDA had bypassed its responsibilities and not levied any punishment on insurers for this gross violation.

Analysis of the petition

As per the analysis, the petition is bona fide in nature as it has enlightened a serious problem that is undervalued. The National Mental Health Survey of 2015-16 conducted by NIMHANS estimated that nearly 150 million Indians were in need of active intervention for mental disorders. The Supreme Court in the case of Mr. X v. State of Maharashtra has held that Section 20 (1) of the MHC Act explicitly provides that ‘every person with mental illness shall have a right to live with dignity’.

Therefore, arbitrary discrimination with the patients suffering from mental illness is a violation of Article 14 and Article 21 of the Constitution as it is a settled position that under Article 14, only reasonable classification is permissible which blatantly excludes any action of arbitrariness.

India can draw its insurance implementation benefits by seeing the functionality of the USA which includes mental health under their insurance policies. The Affordable Care Act of the USA provides the insurance coverage of mental health under the category of ‘Essential Health Benefit’. The act makes this benefit to be covered by all marketplace plans. The inclusion of mental illness under insurance policies in India will secure the right to rehabilitation of a person.

Further, this will advance in protecting the dignity of the patients.

Road Ahead

For now, the petition is still pending before the Supreme Court and the Court has just issued the notice thus, predicting the decision of the Apex Court will be erroneous.

However, the need of the hour is to have a new functional direction from the Court that shall act as a guideline for the insurers. It is important that if any guideline is issued, it must cover the extent of mental illness covered under the insurance policies, the debate of revision of premiums if mental illness is included, the provision for penalization for disobeying the guidelines, and the matters related and incidental to it.

The problem of mental illness is as serious as any other physical problem and therefore, adequate treatment at the right time without fearing loss both monetary and otherwise is necessary without any discrimination from the ends of the hospital as well as insurers and it is high time people started acknowledging the importance of mental health.

In conclusion, considering that a finality on this very subject is not available and at best has woken up a large chunk of people, while we wait for a positive outcome on this, we can only hope people make the right choices in life.

 

 

 

[1] https://www.who.int/mental_health/evidence/en/promoting_mhh.pdf.

[2] https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/article-25-health.html

[3] https://www.irdai.gov.in/admincms/cms/whatsNew_Layout.aspx?page=PageNo3555&flag=1

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