Introduction-
Health and its value to human life, has been recognized as the basic human right under Article 25 of the Universal Declaration of Human Rights, 1948.[1]Article 21 of the Constitution of India, prescribes the fundamental freedom of Right to Life, which has been reaffirmed by the Supreme Court, that the term “life” mentioned under Article 21means a life with human dignity and not mere survival or animal existence.[2],which includes the aspect of mental health also. It was also stated by the Supreme Court that Right to Life also includes right to livelihood, better standard of living, hygienic conditions at workplace and leisure facilities and opportunities to eliminate sickness and physical disability. [3] Guidelines were also issued by the Supreme Court to maintain food, water, personal hygiene, sanitation and recreation for the patients in mental hospitals.[4]Thus, the concept of right to mental health is an integral part of right to health and also forms a part of right to life
It is pertinent to mention here that the right to health, as provided under Article 21 of the Constitution of India, must fulfill the basic four components, which complete the delivery of health services in a true sense. [5]The four components are, “accessibility, acceptability, availability and quality”. The health services of a nation should be, “available” to its population and must also be accessible to all, the term, “ availability”, means that the patient must have access to the primary health care infrastructure and a care provider is present, competent and motivated to provide safe, high quality and respectful services to the person in need. Here the term, “accessibility”, means it should be accessible to all, without discrimination, these health services must be within safe physical reach to all parts of the population, these health services, must be affordable to all the sections of the economic strata of the nation. The term accessibility also includes within itself the accessibility of information related to the health services. The term, “acceptability”, means the health services must be accepted ethically and culturally. They must be respectful to all individuals, minority groups and communities, and also must be sensitive to gender and life-cycle requirements of the population of the nation. The term, “quality” refers that the services must be scientifically and medically proved to be of superior quality by the appropriate authorities designated by the nation. In addition to it, the health services must be continuous in nature. A non-continuous health service, even if complying with all other four components of health, does not fall under the strict definition of health services.
The Mental Health Act, 1986, failed to fulfill these abovementioned criteria for establishing the basic principle of right to health due to budgetary constraints, infrastructural lacunas and underdeveloped human resources. The National Mental Health Programme also failed in the light of the above reasons. India ratified the United Nations Convention on Rights of the Persons with Disabilities in 2007, and was forced to bring in two legislations, in order to meet out the international commitments, namely, the Rights of the persons with Disabilities and Equal Opportunities Act, 2016 and the Mental Health Care Act. 2017. However, the legal framework designed under the enactment could not be implemented after a lapse of 6 years. The basic reasons for the non-implementation being the meager financial allocations, underdeveloped infrastructure, scarcity of human resources and the enactment drafted without taking into account the socio-political and economic conditions in India. The enactment was drafted inspired from the WHO Resource Book and the United Nations Convention of Rights of Persons with Disabilities, 2006
Thus, while drafting the Mental Healthcare Act, 2017, these provisions were put forward under the chapter five of the enactment, which deals with,” the Rights of the Persons with Mental Illnesses”.[6] However, it is noteworthy to mention here that the provision also contains correlative duties to be undertaken by the appropriate authority.[7]The concept of tele-psychiatry was implemented to achieve the four components of Right to Health with least budgetary allocations.
In the meantime, Covid-19 pandemic has triggered a sever growth in the mental illness across the population globally and has also disrupted the world economies. Lockdowns, closures, containment zones, joblessness, issues related to migrant laborers, domestic violence of women, loss of childhood, economic recession, inadequate health infrastructure etc. are the major stories in various newspapers across the globe, increasing the intensity of the problem.
The entry of Covid 19 pandemic played a vital role in the development of the scope of tele-psychiatry in India.. Budgetary allocations were enhanced in order to bring the tele-psychiatry platforms into existence. Several help line numbers were initiated by the government to give aid to the incrassated population in India. Figure-1[8] provides the enhancement in the budgetary allocation since 2019
| Year | Total Budget | Budget for Health | Budget spent on Mental Health | |
| 2019-2020 | 510.92 Crores | |||
| 2020-2021 | 30,42,230 Crores | 67.112 Crores | 546.89 Crores | |
| 2021-2022 | 34,83.,236 Crores | 71,268.77 Crores | 932.13Crore | |
| Direct
MoHFW 597.14 Cr. |
Indirect
MoSJE 334.78Cr. |
|||
| 2022-2023 | 39.45 Lakh Crores | 86,200 crores | 1,035.39 Crores | |
| 2023-24 | 45,03,097 Crore | 89.155 crore | 1.199 Crore | |
Figure-1
It is noteworthy to mention here that in India, the history of tele-medicine dates back to 1999, when the Indian Space Research Organization launched the first Nation-wide SATCOM-based telemedicine network. In 2004, the same was used to aid the tsunami victims by SCARF authorities, who were suffering from various mental ailments due to massive loss of lives, families, property[9]. The scope of tele-psychiatry may be utilized to reduce the gap between the patient psychologist ratios. As per the recent sources, there are only 0.75 psychologists in India for a population of 100.000. It is also estimated that only half of the patients receive treatments. In these above mentioned situations, tele-psychiatry is the only hope for the Indian Population.
Tele-psychiatry in India-
The concept of telepsychiatry includes both the aspect of diagnosis of the disease through teleconsultation and the aspect of medication and treatment
The World Health Organization has defined telemedicine as the delivery of health care services at a distance using electronic implies for “the diagnosis of treatment, and prevention of disease and injuries, research and evaluation, education of health care providers” to improve well-being. [10] It is pertinent to mention here, that though, the concept of tele-psychiatry was induced in India, way back in 1999, but there are still no legislations. The Information Technology Act, 2000 failed to address the issues related to health and the cyber space, though the definition of tele-psychiatry clearly mentions about the application of information and communication technology for psychiatric care.[11]Some amendments were made in the Information Technology Act, 2011, in order to meet the gap. Moreover, the Information Technology (intermediary Guidelines) Rules, 2011, the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011, were introduced to add up the provisions of the Information Technology Act, 2000.
However, on the 25th.of March, 2020, telemedicine guidelines were issued as a part of the Medical Council of India, Professional Conduct and Ethics Regulation 2002. The Registered Medical Practitioners (RMP), can now give consultations through telemedicine under the Medical Council of India Act, 1956.[12] Soon after this the Indian Psychiatric Society in coordination with the National Institute of Mental Health and Neuro Sciences, Bangalore, and the Telepsychiatry Society of India, issued the Operational Guidelines of Telepsychiatry in India.[13] The basic objective of these guidelines were to guide and assist and educate the psychiatrists in India in administration, implementation and help them in setting up the requisite infrastructure and platforms in India for providing the adequate services to the mentally ill. It is noteworthy to mention here that the psychologists must also be registered under the specific state legislations for the practice of telepsychiatry. Some states, such as Karnataka and West-Bengal require compulsory registration under the Clinical Establishments Act, prevailing in the concerned states. In addition to it, the other enactments such as the Mental Healthcare Act,2017, Rights of the Persons with Disabilities Act, 2016, Drugs and Cosmetics Act, 1940 and Drugs and Cosmetic Rules, 1945, Narcotic Drugs and Psychotropic Substances Act, 1985, Pharmacy Act, 1948, Medical Termination of Pregnancy Act, 1971, Transplantation of Human Organ Act, 1994, Environment Protection Act, 1986, Pre-natal Sex determination Test Act, 1994, Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, and such other Acts, Rules, regulations made by the Central Government, State Government and Local Bodies from time to time.
The guidelines give adequate instructions for the storage of the Electronic Medical Records (EMR) of the patient according to section 25 of the Mental Healthcare Act 2017.It also directs that the device used for telepsychiatry should be in the authorized possession of the psychiatrists. The psychologist should also consult with the patient regarding the storage, or recording of the telepsychiatry. Consent becomes an essential part of the agreement for telepsychiatry, and as such, clear discussions must be made regarding the period for which the data stored, should be kept. Any outreach of jurisdiction, with regard to specialization, shall be subject to section 106 of the Mental Healthcare Act, 2017.
It is noteworthy to mention here that the guidelines give clear instructions for the purpose of identification and location of the patient. The guidelines restrict entertaining the patients outside the jurisdiction of India. Moreover, other stipulations, such as mandatory report of child sexual offences to the Special Juvenile Police, under section 19 of the POSCO Act 2012, shall be taken into consideration while giving any consultation.[14] The guidelines restrict asynchronous telepsychiatry practice and thus, any telepsychiatric advice given to the patient, by the assistant of the psychologist is not to be prescribed any medication.
It is pertinent to mention here that, the guidelines prohibit any prescription of medicines under the Schedule X of the Drugs and Cosmetics Act, 1940, Drugs and Cosmetics, Rules, 1945, and anti-cancer drugs. Schedule X drugs are the drugs which cannot be purchased over the counter without a valid prescription from a Registered Medical Practitioner. The substances used for the preparation of such drugs are also protected under the schedule. [15]
The guidelines distribute the medication, which can be prescribed during tele-psychiatry into four classes, namely, List-O, List-A, List-B and List-C.
List-O- these drugs are over the counter medicines and can be purchased without any prescription.
List-A– these drugs are comparatively safe and are least subjected to misuse. Alive and simultaneous video consultation is essential for prescribing such drugs. These dugs include escitalopram and fluonetine. It is noteworthy to mention here that amongst the list of antidepressants, escitalopram, are more efficient in cattering the needs of adult patients whereas, fluonetine medication is least effective. This list also consist antipsychotics drugs. A recent network meta-analysis of head-to-head randomization placebo trials, comparing 32 antipsychotics found only minor efficiency differences between antipsychotics. [16] The guidelines curtail the right of choice of the doctor; to prescribe a suitable medication to a specific patient, taking into consideration other factors, such as his age, body weight etc. Same is the case with anti-epileptic drugs. List- A consist only phenobarbitone, diphenyle-dantion, and sodium valproate and divalproex sodium are placed under List-B, which reduces there easy availability, though these medicines in List-B, are found to be more effective.[17].
List- B- these drugs are called as ad-on medicines, used to optimize a psychological patient. However, these medicines cannot be prescribed at the preliminary instance, but be used during the follow-ups through video conferencing only. List-B, prescribes antipsychotics such as airpiprazole, quetiapine, amisulpride, trifluoperazine, risperidone and haloperidol, which are already there in List- A, though with difference tolerability.[18] Thus, calling these medicines as ad-on is not reasonable.
List-C- these medicines are prohibited for telepsychiatry. These are the medicines, listed under the Schedule X of the Druga and Cosmetic Rules, 1945.
Other Drugs-Certain drugs such as methyl phenidate, used for treatment of attention-deficit hyperactivity disorder, may be prescribed under List- B as other drugs, but the same is also covered under the Narcotics Drugs and Psychotropic Substances Act, 1985, So, a confusion is there regarding the prescription of this drug through telepsychiatry. It is noteworthy to mention here that all other drugs falling under the same category are restricted to be prescribed under telepsychiatry under List-C[19]
Thus, regarding the prescription of medicines through telepsychiatry is still a confused state of affairs, which will be surely taken into account with learning experience. It is noteworthy to mention here that the United States of America has relaxed the rules related to prescription of medicines through telepsychiatry, to bridge the gap between the practical situation and legislation.[20]Under the Indian legal framework, it is noted that the major mental disorders skip out of the list, while taking telepsychiatry into consideration.
Teleconsultation /Psychotharapy-While taking into consideration, the aspects of tele-consultation or psychotherapy through telepychiatry, it has to be kept in mind that the preliminary visits should be a face- to- face, physical visit, however the follow up visits can be done through tele conferencing. It is pertinent to mention here that the tele-consultations are done basically through audio-visual mode, but often, these consultations may be disrupted due to technical glitches, such as poor internet connectivity or inadequate device possessed by the patient. Family interventions may also disrupt the process of consultation, where the family members may put the answers to the quarries made by the psychotherapist.
While considering the scope of psychotherapy, it becomes very essential for the psycho-therapist to connect to the patient for proper diagnosis, through the patients sitting posture, his emotions towards a specific question, his facial expressions, etc. which may be un-noticed through the mode of telepsychiatry. Moreover, the psychotherapist may have a stereotyped questioner, which may be incapable to address the needs of the different patients.
It is also noteworthy to mention here that a psychotherapist may ask the patient to perform a specific list of activities before his next follow-up. It sometimes becomes very difficult for the psychotherapist to keep a track of such activities through telepsychiatry and thus, may not lead to the correct diagnosis of the problems of the patient.
Health Insurance and Telepsychiatry- the Mental Healthcare Act, 2017, made mandatory provisions for the purpose of proving insurance cover to the mentally ill patients in the chapter related to rights of the mentally ill persons.[21] Soon the Insurance Regulatory and Development Authority of India issued notification to all privet and public insurance companies to issue products in the market, where the mental health can also be covered. However, most of the companies have not provided any products for the mentally sick persons. It is pertinent to mention here that, the companies, which have issued such schemas, did not entertain outpatient or telepsychiatry under the cover of insurance.Covid-19, played a vital role for bringing telepsychiatry under insurance coverage, when the IRDA issued notification to entertain telepsychiatry. [22]
Conclusion-
It is evident that the scope of telemedicine and telepsychiatry will comply with the four essential components of Right to health, ie, accessibility, acceptability, availability, and continuity of the health services in the long run, and shall also play a vital role in decreasing the gap of patient-psychologist ratio in a large nation like India, and soon with infrastructural developments will reach to the most rural spheres of India. Moreover, it will be helping a lot in removing the stigma against the mentally ill persons. At present, only half of the patients, who are mentally ill, receive treatments, but the opening of telepsychiatry will encourage the educated youth and the urban population to take the aid of telepsychiatry in redress of their mental weaknesses. The recent budgetary enhancements and the establishment of tele-manas will obviously wipe out the poor infrastructural lacunas related to poor internet facilities, data privacy etc. It is also pertinent to mention here that the Mental Healthcare Act, 2017 was supposed to be implemented within one year after its inception, but yet only nineteen states have notified the enactment and the legal framework according to the enactment, has not yet been adopted in many states, It is noteworthy to mention here that the telepsychiatry takes into consideration the provisions of the Mental Healthcare Act, 2017, for its functioning, and thus, the provisions such as nominative representation or advanced directives are seriously taken into account while adopting the mode of telepsychiatry, Hence, the objectives of the mental Healthcare Act, 2017, seems to be partially implemented.
Author(s):
Koushik Bagchi, Assistant Professor, National University of Study and Research in Law, Ranchi.
References:
[1] United Nations Declaration on Human Rights, 1948
[2] Francis Coralie Mullin vs. The Administrator, Union Territory of Delhi. AIR 1981 746
[3] Consumer Education Research Center vs. Association of India AIR 1995 SC 922
[4.] Rakesh Chandra Narayan vs. State of Bihar. MANU /SC/0395/1988
[5] Office of the United Nations High Commissioner for Human Rights CESCR General Comment No. 14
[6] Section 18, Mental Healthcare Act 2017
[7] Section 18, Clause-3, 5, 6, 8,10,11
[8] The Economic Times, dt. October 9, 2020.
[9] Subrata Naskar, Robin Victor,Telepsychiatry in India-Where do we stand? A Comparative Review between Global and Indian Telepsychiatry Programmes. PMCID PMC5461830, Accessed on 13th. October 2023
[10] Serper M, Volk ML.Current and Future Applications of Telemedicine to Optimize the Delivery of Care in Chronic Liver Disease. Clin Gastroenterol Hepatol. 2018;16:157-161.e8. 10.1016/j.cgh.2017.10.004
[11] Malhotra S, Chakrabarti S, Saha R., Telepsychiatry : Promise, potential and challenges. Indian J Psychiatry.2013. 55:3-11
[12] Telemedicine Practice Guidelines, Appendix-5 of the Medical Council, Professional Conduct, Etiquette and Ethics Regulation, 2002. Available on www.mohfw.gov.in/pdf/Telemedicine.pdf. Last Accessed on 14.10.23.
[13] Telepsychiatry Operational Guidelines 2020(e-book)NIMHANS, Available at www.nimhans.ac.in
[14] Circular No-2373-88/R-44/DGP/LC/2002
[15] Schedule X of the Drugs and Cosmetic Rules, 1945
[16] Lehman A F, Liberman J A, Dixon L B, McGlashan T H, Miller A L, Perkins D O, et al, Practice Guidelines for the Treatment of Patients with Schizophernia, 2nd. Edition. Am J Psychiatry 2004, 161(suppl 2):1-56
[17] Sadock BJ, Sadock VA, Kaplan and Sadock”s synopsis of Psychiatry : Behavioral Sciences/ Clinical Psychiatry 10th. Edition , Lippincott Williams and Wilkins,2007
[18] Cipriani A, Atkinson L, Ogawa Y, et al, Comparative efficacy and acceptability of 21 anti-depressant drugs for the acute treatment of adults withmajor dipressive disorder:a systematic review and network meta-analysis. Lancet 2018: 391;1397-66
[19] Conolly B, Federal Government eases access to opioid use disorder treatment during pandemic Pew Charitable Trust ,2020
[20] Ibid on 19
[21] Section 21 of the Mental Healthcare Act 2017
[22] IRDAI Guidelines on telemedicine Hydrabad: Insurance Tegulatory and Development Authority of India 2020.