Mental Health & Insurance Law: Locating The Flawed Discrimination

When the world went into lockdown due to the covid pandemic, there was a substantial increase in mental health problems. The world as a whole saw increasing cases of anxiety and depression. going through the data provided by the Psychiatric Society of India, it is confirmed that more than 40% of Indians suffer from mental health problems. While some people rushed to buy health policies to cover the sudden increase in medical costs, it was just as important for them to check if the policy also covers mental health issues.

For a long time, health insurance policies in India only covered physical illnesses. We can feel the change in this trend now, unlike the previous trend, now some insurers also provide coverage for psychological disorders. This change is in line with the instructions given by the Insurance Regulatory and Development Authority of India. The regulator has asked providers to add mental illness to their regular health insurance coverage and to provide health insurance to buyers who have also taken antidepressants or opioids in the past.

Mental Health Law: Legislation for the People

After the enactment of the Mental health care law, people can now take advantage of various services and, in case the services are not available, they become eligible to apply for compensation from the state. These rights include the right to confidentiality, the right to access medical records, the right to community life, protection from inhuman treatment, and the right to equality and non-discrimination as provided by law. Various other protections are provided to people with mental illnesses under Section 21 of the Mental Health Act 2017 to ensure that they are treated in the same way as people with physical illnesses. Section 21 (4) of the Act ensures that there can be no discrimination in insurance coverage for patients with mental and physical illnesses. In the case of Shikha Nischal Vs National Insurance Company Limited and Anr (WP(C) 3190/2021) dated April 19, 2021, the Delhi High Court addressed the issues related to mental illness and its insurance coverage. The court noted that Section 212 of the Mental Health Care Act 2017 recognizes the right to equality and prohibits any kind of discrimination related to mental illness, so insurance companies must make provisions for medical illness on the same basis as for physical illness.

However, the definition of mental illness explicitly states two exclusions, first, it excludes mental retardation and second, the results of alcohol or drug abuse. The Mental Health Act of 1987 did not provide a specific definition of mental illness; defines a person with a mental illness as a person who requires treatment for a mental illness other than mental retardation. Even Substance Use Disorder (SUD) was not mentioned in the previous legislation, except in Chapter III. However, the definition of mental illness in current legislation has included SUD. Complying with IRDAI guidelines, some insurance companies have begun to provide mental health coverage in their existing services. Typically, insurance policies provided by these companies cover inpatient hospital costs for mental illness, while outpatient department services such as counseling or therapy are only reimbursed if covered. The cost incurred for hospitalization for hospital treatment related to any mental illness is covered by mental health insurance. Expenses for diagnosis, treatment, medication, hotel, etc. they are included as long as the patient has been hospitalized for at least 24 hours. Coverage may vary and sub-limits apply depending on insurer. However, insurers do have some exclusions for mental health treatment. Reserves are made in part to cover outpatient charges, as these are rarely covered, and any mental illness related to drug or alcohol abuse. Mental retardation or intellectual disability is the main exclusion of the policy.

Type of treatments to be covered by insurance

The Mental Health Act of 2017 states that “each insurer shall provide medical insurance for the treatment of mental illnesses on the same basis as is available for the treatment of physical illnesses.” The key factor to be considered by insurance companies is determining the types of treatment that will be covered by mental health insurance. A literal interpretation of insurance “syam base” since physical illness would lead to coverage of cases that require hospitalization and immediate attention. The psychotherapy sessions required to cure a mental health problem need several therapy sessions. It requires a long period of time to heal. Therefore, This anomaly poses a challenge for medical care.Insurance companies decide on what basis they will cover the insured, either by the number of days of hospitalization or by the total estimated time for treatment.As for mental illnesses, including the treatment methodology differs One patient cannot be expected to be cured by the same treatment given to others The Mental Health Care Act does not directly address this in legislation This leaves an uneven playing field as insurers will have an advantage to take advantage of this legal loophole They have the freedom to decide whether to cover the cases for which a person with mental illness must undergo to a treatment that suits you or to treatments commonly accepted in the field. a large number of insured persons who do not receive adequate care and treatment.

Pre-existing conditions and underwriting involved

For physical illnesses, insurance companies have an estimate of the premiums that plague a particular set of illnesses. They underwrite the premiums based on these terms and conditions. Mental illnesses cannot be exactly related to certain predominant illnesses or lifestyle habits. Therefore, underwriting becomes difficult as they have to decide the reasons for imposing higher premiums, if necessary. The Mental Health Care Law does not provide sufficient guarantees to protect people who are more exposed to possible mental illness due to stress or other factors. For example, migrant workers and widows are at higher risk of mental illness. An insurance company can exploit this loophole to justify higher premiums.

suicide attempts

The Mental Health Care Act of 2017 states that care and treatment must be provided to a person who has attempted suicide under severe stress. Suicide attempts are common with mental illness. The law does not state whether treatment for all suicide attempts should be covered by insurance companies or only for those who have been diagnosed with a particular psychiatric illness before attempting suicide.

Provide access to medical history to insurance companies

All requests from insurance companies have access to medical records to determine insurance claims and premium charges. They may require a history of procedures performed, applied treatments, diagnostic methodology, etc. for people with mental illness. The mental health law does not establish how and what type of information must be shared. Article 23 of the Law establishes the right to confidentiality. However, it does not specify the amount of information that must be shared and the information that could be kept.

With the implementation of the MHCA and IRDAI instructions, mental health services will become more affordable, accessible and will go a long way towards de-stigmatizing mental health conditions in India. There is a growing acceptance of mental health issues among the youth of India, which will result in personalized coverage of mental health issues and associated disorders. While there are certain aspects where more guidance is needed, such as the cost of OPD, counselling, treatment and therapy, we may see a growing awareness of the issue and it will be interesting to see how the government is going to address these. problems.

Views are personal.