On 21st June 2022, the Mental Health (Amendment) Act (MHAA) was passed into law introducing significant changes to, among other things, the legal definition of mental illness and the right of mentally ill persons to access health insurance. Prior to the amendment, Section 46 of the Mental Health Act made it illegal for an insurer to issue a medical insurance policy that excluded or restricted access to medical healthcare by persons suffering from mental disorders. Consequently, Insurance companies were able to include sub-limits on mental illness treating it differently from physical illness without breaching the law.
However, the new law is a marked departure from this traditional position. Globally, mental illness is now understood to include suicidal ideation, substance abuse and addictions related to traditional illnesses such as major depression and bipolar disorders.[1] This evolution is reflected in the definitions under the MHAA. Specifically:
- Section 3 defines a person suffering from a mental disorder as anyone who has been found to be so suffering under the Act and includes a person diagnosed as a psychopathic person with mental illness and a person suffering from mental impairment due to alcohol or substance abuse;.
- Furthermore, a person with mental illness is defined as “…a person diagnosed by a qualified mental health practitioner to be suffering from mental illness, and includes— (a) a person diagnosed with alcohol or substance use disorder; and (b) a person with suicidal ideation or behavior….” This definition is in keeping with the World Health Organization’s definition and tallies with the approaches taken in countries such as the United States of America and India.[2]
Consequently, insurers are bound to consider such cases as mental illness and have claims on account of their treatment paid.
Secondly, and in addition to the change to definition, the Act has made it illegal to discriminate against mental illness patients in insurance policies. Section 3 provides that an insurance company or person providing health insurance services shall not discriminate against a person with mental illness or subject a person with mental illness to unfair treatment in obtaining the necessary insurance cover. Arguably, this provision substantially enhances the provisions of Section 46 in the 1989 version of the Mental Health Act. This read together with Article 43 implies that medical insurance providers will be operating illegally if they issue policies that treat mental health patients (including persons with substance abuse addictions) differently from persons with physical ailments.
Violation of the non-discrimination provision attracts a fine of Kshs. 5,000,000.00 where an insurer continues including sub-limits for mental illness in insurance policies.
Finally, in keeping with the Data Protection Act 2019, Section 3H provides that data from treatment of a person with mental illness is confidential. Such information cannot be disclosed unless: there is a requirement of the law, a court order, disclosure is in the public interest, disclosure is in the interest of the mentally ill person or disclosure is required for treating of the mentally ill person. In practice insurers need full disclosure to understand the diagnosis to determine whether or not to pay any claim. These competing interests consequently occasion an apparent conflict that the Insurance Act amendments must address for clarity.
[1] Marcia Purse , “What Is Suicidal Ideation? A Look at Dangerous Thought Patterns,” verywellmind, September 16, 2022 available at https://www.verywellmind.com/suicidal-ideation-380609
[2] Mental Healthcare Act, 2017 (India), section 21 (4) and The Mental Health Parity and Addiction Equity Act, 2009(United States of America)
