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
He holds a Bachelor’s and Master’s Degree in Corporate Secretaryship and a Degree in Law. He is a Fellow member of the Institute of Company Secretaries of India and an Associate Member of the Corporate Governance Institute, UK and Ireland. He has also completed a program from ISB on ‘Value Creation through Mergers and Acquisitions.
Mr P Muthusamy is an Indian Revenue Service (IRS) officer with an outstanding career of 30+ years of experience and expertise in all niche areas of Indirect Taxes covering a wide spectrum including GST, Customs, GATT Valuation, Central Excise and Foreign Trade.
During his judicial role, he heard and decided a large number of cases, including some of the most sensitive, complicated, and high-stake matters on insolvency and bankruptcy, including many cases on resolution plans, shareholder disputes and Schemes of Amalgamation, De-mergers, restructuring etc.,
Ms. Sarah Abraham has been enrolled with the Bar Council of Tamil Nadu since 1998. Her areas of practice include Shareholder Disputes, Corporate Compliances, Mergers and Acquisitions, Private Equity/ Venture Capital Agreements and allied disputes, Information Technology Contracts, Intellectual Property, General Commercial Agreements, Litigation, Arbitration and Mediation.
A K Mylsamy is the Founder, Managing Partner and the anchor of the firm. He holds a Degree in law and a Degree in Literature. He is enrolled with the Bar Council of Tamil Nadu.
M Subathra holds a Degree in law and a Master’s Degree in International Business Law from the University of Manchester, United Kingdom. She is enrolled with the Bar Council of Tamil Nadu.
Mr. K Rajendran is a former Indian Revenue Service (IRS) officer with a distinguished service of 35 years in the Indirect Taxation Department with rich experience and expertise in the fields of Customs, Central Excise, Service Tax and GST. He possesses Master’s Degree in English literature. Prior to joining the Department, he served for the All India Radio, Coimbatore for a period of about 4 years.
An MBA from the Indian Institute of Management, Calcutta, and an M.Sc. in Tourism Management from the Scottish Hotel School, UK, Ashok Anantram was one fo the earliest IIM graduates to enter the Indian hospitality industry. He joined India Tourism Development Corporation (ITDC) in 1970 and after a brief stint proceeded to the UK on a scholarship. On his return to India, he joined ITC Hotels Limited in 1975. Over the 30 years in this Organisation, he held senior leadership positions in Sales & Marketing and was its Vice President – Sales & Marketing. He was closely involved in decision making at the corporate level and saw the chain grow from a single hotel in 1975 to a very large multi-brand professional hospitality group.
Mani holds a Bachelor Degree in Science and P.G. Diploma in Journalism and Public Relations. He has a rich and varied experience of over 4 decades in Banking, Finance, Hospitality and freelance Journalism. He began his career with Andhra Bank and had the benefit of several training programs in Banking.
Mr. Kailash Chandra Kala joined the Department of Revenue, Ministry of Finance as ‘Customs Appraiser’ at Mumbai in the year 1993.
S Ramanujam, is a Chartered Accountant with over 40 years of experience and specialization in areas of Corporate Tax, Mergers or Demergers, Restructuring and Acquisitions. He worked as the Executive Vice-President, Group Taxation of the UB Group, Bangalore.
K K Balu holds a degree in B.A and B.L and is a Corporate Lawyer having over 50 years of Legal, Teaching and Judicial experience.
Justice M. Jaichandren hails from an illustrious family of lawyers, academics and politicians. Justice Jaichandren majored in criminology and then qualified as a lawyer by securing a gold medal. He successfully practiced in the Madras High Court and appeared in several civil, criminal, consumer, labour, administrative and debt recovery tribunals. He held office as an Advocate for the Government (Writs Side) in Chennai and was on the panel of several government organizations as senior counsel. His true passion lay in practicing Constitutional laws with focus on writs in the Madras High Court. He was appointed Judge, High Court of Madras in December 2005 and retired in February 2017.
S Balasubramanian is a Commerce and Law Graduate. He is a member of the Delhi Bar Council, an associate Member of the Institute of Chartered Accountants of India, the Institute of Company Secretaries of India and Management Accountants of India.