LAWS AFFECTING MENTAL HEALTH IN PHILIPPINE SETTING:

A CRITIQUE ON CAMBRI’S POSITION PAPER OPPOSING HOUSE BILL 5347, DISCUSSION OF PHILIPPINE HEALTH INSURANCE COVERAGE

AND OTHER COMMENTS AFFECTING MENTAL HEALTH

Authored byNaomi Therese F. Corpuz

TABLE OF CONTENTS

I. UNITED NATIONS CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES (UN CRPD) & OTHER INTERNATIONAL AGREEMENTS ARE NOT ABSOLUTE………………………………………………………………………………3

A. Treaties are not absolute as they are subject to police power of the State………………………………………………..……4

B. Legal Capacity cannot be given to the mentally impaired on an equal basis with others at all times…………………9

C. Cambri hates Psychiatrists and Psychiatric drugs that is purely opinion-based…………………………………………………………..………11

D. Other Comments on Cambri’s Position Paper………………….…….14

II. NEED FOR INSURANCE COVERAGE NOT ONLY FOR THE ACUTE BUT ALSO FOR CHRONIC MENTAL ILLNESSES……………………………….…….…17

III. COMMENTS ON LAWS AFFECTING MENTAL HEALTH……….………..…26

A. Republic Act 7277 (Magna Carta for Disabled Persons)………………………………………………………….…………..….26

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B. The 20% Discount for PWDs………………………………..………….….33

IV. BIBLIOGRAPHY………………………………………………………………………..38

LAWS AFFECTING MENTAL HEALTHIN PHILIPPINE SETTING:

A CRITIQUE ON CAMBRI’S POSITION PAPER OPPOSING HOUSE BILL 5347, DISCUSSION OF PHILIPPINE HEALTH INSURANCE COVERAGE

AND OTHER COMMENTS AFFECTING MENTAL HEALTH*

Naomi Therese F. Corpuz****

Speak for people who cannot speak for themselves.Protect the rights of all who are helpless.

Proverbs 31: 8

To this day, the Philippines is one of the remaining "30%" States which still have no mental health law.1 This is why until now, patients can languish in psychiatric hospitals because there are no rules nor oversight mechanisms to review their cases.2 By recognition of these facts, a House Bill known as HB 5347 was drafted through the sponsorship of legislators such as Rep. Leni Robredo and Sen. Pia Cayetano during the Sixth Congress of 2015. The drafted law in HB 5347 is entitled, “The Philippine Mental Health Act of 2015.”3

* Cite as Naomi Therese F. Corpuz, LAWS AFFECTING MENTAL HEALTH IN PHILIPPINE SETTING: A critique on Cambri’s Position Paper Opposing House Bill 5347, Discussion of Philippine Health Insurance Coverage And Other Comments Affecting Mental Health.**** J.D., University of the Philippines College of Law (2015); A.B. Psychology, cum laude, University of the Philippines (2013). 1 Interview with Dr. June Pagaduan-Lopez, practicing psychiatrist at Cardinal Santos Medical Center, March 23, 2016.2 Supra.3 Interview with Dr. Eduardo Tolentino, Past President of Philippine Psychiatric Association (PPA), March 23, 2016.

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Although this bill was made, it has received criticisms such that it is allegedly non-compliant with International Human Rights Conventions. The question is, “Are International Human Rights Conventions absolute?” For if they are not absolute, HB 5347 does not need to comply to these International Conventions especially if such Conventions have loopholes and have received criticisms themselves.

I. UNITED NATIONS CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES (UN CRPD) & OTHER INTERNATIONAL AGREEMENTS ARE NOT ABSOLUTE.

The relation of international law vis-a-vis municipal law was expressed in Philip Morris, Inc. v. Court of Appeals, to wit:

xxx Withal, the fact that international law has been made part of the law of the land does not by any means imply the primacy of international law over national law in the municipal sphere. Under the doctrine of incorporation as applied in most countries, rules of international law are given a standing equal, not superior, to national legislation.4 (Emphases mine)

This means that even if the Philippines is a signatory of an international law, it does not necessarily mean that it is binding when there are national laws that run contrary to it. This makes the position paper of Janice Marie Cambri5 without merit where she stated in part:

We, the users/survivors of psychiatry and persons with psychosocial disabilities, are opposing the Mental Health Bills filed in both Houses of Congress due to the presence of provisions that contravene international human rights standards such as the UN Convention on the Rights of Persons with Disabilities (UNCRPD), the International Covenant on Civil and Political Rights (ICCPR), and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Philippines signed, adopted, and/or acceded to all these treaties. (Emphases mine).

To reiterate the last sentence which states, “The Philippines signed, adopted and/or acceded to all these treties,” is misleading for it is non sequitur that the Philippines will absolutely without exceptions will accede to all these treaties. Cambri tends to forget that there are Philippine Jurisprudence

4 cited in Lim v. Executive Secretary, 380 SCRA 739 (2002)5 Cambri, Janice Marie, M.A., Founder of Transforming Communities for Inclusion of Persons with Psychosocial Disabilities-Philippines (TCI-Phil) and wrote a position paper entitled, “NO TO MENTAL HEALTH LAWS THAT ARE NON-COMPLIANT WITH INTERNATIONAL HUMAN RIGHTS CONVENTIONS.

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where the Supreme Court provides, among others, Lim v. Executive Secretary6 which states:

From the perspective of public international law, a treaty is favored over a municipal law pursuant to the principle of pacta sunt servanda. Hence, “[e]very treay in force is binding upon the parties to it and must be performed by them in good faith.” Further, a party to a treaty is not allowed to “invoke the provisions of its internal law as justification of its failure to perform a treaty.”

Our Constitution espouses the opposing view. Witness our jurisdiction as stated in section 5 of Article VIII:

The Supreme Court shall have the following powers (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgements and order of lower courts in:

(A) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

xxx xxx xxx xxx

In Inchong v. Hernandez, we ruled that the provisions of a treaty are always subject to qualification or amendment by a subsequent law, or that is subject to the police power of the State. (Emphases mine)

A. Treaties are not absolute as they are subject to police power of the State.

Cambri, in her position paper says that in 2008, the Philippine government adopted the UNCRPD. She says further that this instrument sets the global standard for the inclusion and full and effective participation of persons with disabilities.7 She says that in essence, an international treaty signed by the government becomes part of the laws of the land. She says further, the provisions in the UNCRPD simply need to be harmonized with our domestic laws through legislations by abolishing or repealing laws that are not compliant with the UNCRPD and incorporating its mandates in existing policies and practices of all government agencies8

Cambri seems to ignore however, that treaties and/or international agreements that the Philippines adopt, such as the UNCRPD, are not

6 380 SCRA 739 (2002).7 Cambri, Supra Note 58 Id.

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absolute and don’t automatically become part of the laws of the land in the exercise of the police power of the State.

Police power is well-defined in Philippine Exporters of Service Associations, Inc. v. Drilon:9

The concept of police power is well-established in this jurisdiction. It has been defined as the "state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare." As defined, it consists of (1) an imposition of restraint upon liberty or property, (2) in order to foster the common good. It is not capable of an exact definition but has been, purposely, veiled in general terms to underscore its all-comprehensive embrace…

"The police power of the State ... is a power coextensive with self- protection, and it is not inaptly termed the "law of overwhelming necessity." It may be said to be that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety, and welfare of society."

It constitutes an implied limitation on the Bill of Rights. According to Fernando, it is "rooted in the conception that men in organizing the state and imposing upon its government limitations to safeguard constitutional rights did not intend thereby to enable an individual citizen or a group of citizens to obstruct unreasonably the enactment of such salutary measures calculated to ensure communal peace, safety, good order, and welfare." Significantly, the Bill of Rights itself does not purport to be an absolute guaranty of individual rights and liberties "Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's will." It is subject to the far more overriding demands and requirements of the greater number. (Emphases mine).

This means that if a mentally ill person will hurt himself or others due to his condition, the State has the power to restrict his liberty - that is for the interest of the general welfare.

Cambri further criticizes mental health bills in her position paper which she describes to even manipulate the laws to justify forced treatments during “psychiatric emergency” which they define as:

Psychiatric emergencies are conditions which may present a serious threat to the person’s wellbeing and/or that of others requiring immediate psychiatric interventions such as in cases of attempted suicide, acute intoxication, severe depression, acute psychosis, or violent behavior.

9G.R. No. 81958, June 30, 1988.

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Cambri’s position is absurd to question the definition of “psychiatric emergencies” since it is only logical to have psychiatric interventions when there are conditions which may present a serious threat to the person’s well-being and/or that of others. Restricting the liberty of the individual under such conditions cannot even be described as inhumane as the intervention is medical and would even be beneficial to the person afflicted with the condition. Freeman and colleagues10 explains this and even criticized the general comment on UNCRPD and Article 12 in a Lancet Psychiatry Journal in 2015, which states in part:

The UN CRPD and General Comment on Article 12

The UN CRPD was adopted by the UN General Assembly in December, 2006, and entered into force in May, 2008. It was subsequently ratified or acceded to by 152 nation States. At the time of writing (January, 2015), 30 States had signed but not ratified the Convention…

Importantly, the likelihood of a person making a recovery to the point of regaining capacity and therefore being able to give informed consent is often diminished without treatment. In the example of psychosis, we might be undermining the right to health to allow a person to stay in a psychotic state and never allow them to get to a point of refusing or accepting treatment in an informed manner. The question then becomes whether involuntary treatment of a person with psychosis can be given at least to the point at which sufficient recovery has been made to make an informed decision. Even if the “right to health” is not a sufficient justification to treat a person without consent, what if a person with mental illness is a danger to self or to others? For example, what if the person is hearing voices that tell him or her to hurt themselves or another person? Should such a person rather be left to harm himself or herself or others or to go to jail rather than be admitted to hospital without their consent? … Despite agreeing fully with the argument that involuntary admissions and compulsory treatment are often overused, and have historically resulted in the rights of people being violated, we cannot accept that doing away completely with involuntary admission and treatment will promote the rights of persons with mental illness. (Emphases mine).

Our own law in special proceedings for instance, particularly Rule 101 of the Rules of Court establishes the procedure for having a person allegedly insane committed to an institution.11 Cambri, however, cites Rule 101 of the 10 Melvyn Colyn Freeman et.al., Reversing hard won victories in the name of human rights: a critique of the General Comment on Article 12 of the UN Convention on the Rights of Persons with Disabilities (Lancet Psychiatry 2015 Journal), Published Online on July 6, 2015. Available at http://dx.doi.org/10.1016/ S2215-0366(15)00218-7 (Last visited: March 23, 2016).11 Antonio Bautista, BASIC SPECIAL PROCEEDINGS (2004).

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Rules of Court entitled “Proceedings for Hospitalization of Insane Persons” that allows for involuntary institutionalization as non-compliant with Articles 12 and 14 of the UNCRPD12 but she did not discuss the contents and substance of such Rule.

Under Rule 101 a petition for the commitment of a person to a hospital or other place for the insane may be filed with the Court of First Instance (now Regional Trial Court) of the province where the person alleged to be insane is found.13 The petition shall be filed by the Director of Health (now Secretary of Health) in all cases where, in his opinion, such commitment is for the public welfare, or for the welfare of said person who, in his judgment, is insane and such person or the one having charge of him is opposed to his being taken to a hospital or other place for the insane.14 Upon satisfactory proof, in open court on the date fixed in the order, that the commitment applied for is for the public welfare or for the welfare of the insane person, and that his relatives are unable for any reason to take proper custody and care of him, the court shall order his commitment to such hospital or other place for the insane as may be recommended by the Director of Health.15

When the lawmakers crafted this law, they reiterated in the provision that institution of the insane individual is for the common welfare and for the welfare of said person, and not violate the latter’s right in any manner. More importantly it is the exercise of the police power of the State to protect the person from harming himself and others. Cambri must know that no matter how numerous her citations are in her position paper criticizing national laws that restrict liberty of the insane, supported, among others, by Interim Report of the Special Rapporteur on torture and other cruel, inhuman, inhuman or degrading treatment or punishment (2008) and Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (2013) of the UN General Assembly, such reports can never supersede the police power of the State. Police power cannot be contested according to jurisprudence. The case of Lao H. Inchong vs. Jaime Hernandez et al.,16 emphasized that “police power may not be curtailed or surrendered by any treaty or any other conventional agreement.”

The CRPD says that “the existence of a disability shall in no case justify a deprivation of liberty”. Freeman and colleagues17 say that this is an

12 Cambri, Supra Npte 513 RULES OF COURT, Rule 101, Sec. 1.14 Id. 15 Id., Rule 101, Sec. 3. 16 101 Phil.,1155 (1957)17 Freeman, Supra Note 10

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important principle that deserves support, particularly as mental disability has historically been used as justification to remove people from their communities and restrict them to institutions. They explain:

However, application of an absolute rule of not admitting a person because of mental disability could in some circumstances result in the long-term deprivation of liberty—possibly in a prison—rather than a potentially much short(er)-term “deprivation” in a hospital. In several countries, in addition to being mentally ill, danger to self or others is a precondition to admit a person without their consent as an added protection against arbitrary or unnecessary admission. This precondition is not valid in all countries. For example, in Italian law it is not dangerousness that is the base for an involuntary admission but the need for treatment. It is argued that since dangerousness is not a disease, dangerousness should be a police problem and is not a medical problem. The involuntary admission is therefore based solely on the need for treatment. Yet with or without a dangerousness requirement in law, in specific circumstances of mental illness, by temporarily admitting a person without their consent, longer-term deprivation of liberty can be avoided. (Emphasis mine)

Thus, not restricting the liberty of the mentally ill in a hospital as Cambri suggests, may even do more harm than good.

Similarly, Cambri says that the Insanity Defense plea in the Revised Penal Code which exempts a person with psychosocial disability from criminal liability and is directed to an automatic confinement in hospitals is also non-compliant with Articles 12 and 14 of the UNCRPD18.

However, Freeman and colleagues as a rebuttal, explain19:

In all domestic courts, to be found guilty of a serious crime necessitates proving that one must have: (1) committed the crime, (2) intended to commit the crime, and (3) known that what one was doing was wrong at the time. These criteria are known as the M’Naghten Rules and, according to them, every person is presumed “sane” until proven otherwise. The related notion of mens rea or “guilty mind” is invoked in legal settings and involves various levels of “guilt.” Moreover, most courts require the accused to be able to follow court proceedings in order to be tried and sentenced. Failure to do this owing to mental incapacity is usually reason to divert the accused. We argue that without mens rea as a litmus test for culpability in a crime with respect to mental state, society would effectively discriminate against persons with mental illness and persons with mental illness would be held to a higher standard than other persons.

18 Cambri, Supra Note 519 Freeman, Supra Note 10

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Further problems arise if a person with mental illness is jailed rather than diverted to mental health treatment. First, treatment in prison, even if the prisoner accepted such treatment, is likely to be less effective than treatment in a hospital setting because of differences in staff expertise and environment. Second, the person might be a victim of violence due to stigma and discrimination against persons with mental disorders, and third, should the prisoner be “disruptive”, the prison authorities would have little power to provide medical assistance unless consent were given. In view of the circumstances in most prisons, psychotic behaviour might bring serious consequences—if not from the prison authorities, then from other inmates. (Emphases mine)

Thus, Freeman and collegues are correct to argue that, convicting a person who committed a crime as a result of serious mental illness and sentencing them to prison rather than diverting them for treatment and possible quick discharge is unlikely to be to their benefit.

B. Legal Capacity cannot be given to the mentally impaired on an equal basis with others at all times.

Cambri emphasizes Article 12 Section 2 of the CRPD which says “States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”. This provision which asks for the repeal and/or amendments of domestic laws in the Philippines would result to problems and would affect in a wide magnitude our national laws. Freeman and colleagues explain20:

In April, 2014, the Committee on the Rights of Persons with Disabilities, the UN entity assigned to monitor implementation of the Convention, finalised a General Comment concerning Article 12 (and related articles), in which prevailing concepts of mental and legal capacity were summarily overturned. This interpretation departs from previous intergovernmental agreements on human rights and earlier WHO recommendations on mental health law. At the centre of much of the controversy is the term “legal capacity”. Article 12 Section 2 of the CRPD says “States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”. The Committee consequently asserts that henceforth substituted decision-making, compulsory treatment, involuntary admissions, and diversion from the criminal system process on the grounds of mental disability (sometimes called the insanity defence) should be abolished. The magnitude of the changes now asked of countries is enormous, yet the implications seem to have largely flown under the radar of most governments and the mental health sector.

20 Freeman, Supra Note 10

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In the introduction of the General Comment, the Committee states “...there has been a general failure to understand that the human rights-based model of disability implies a shift from the substituted decision- making paradigm to one that is based on supported decision-making”. This change in approach leads the Committee to state that State Parties have an obligation to require all health and medical professionals (including psychiatric professionals) to obtain the free and informed consent of persons with disabilities before any treatment and not to permit admission to hospital unless requested by the user.

The General Comment defines mental capacity as “the decision-making skills of a person” and rejects prevailing medical conceptions of mental capacity, stating that it is “highly controversial” and that mental capacity “is not, as is commonly presented, an objective, scientific and naturally occurring phenomenon”. The Committee argues that mental capacity and legal capacity should not be “conflated”, and that impaired decision-making skills should not be justification for suspension of legal capacity.

We submit that the Committee’s interpretation and conclusions are highly problematic. We fully agree that disability should never be the sole reason for the suspension of a person’s rights, and also that in both the realms of health care and in court all persons should be presumed to have both mental and legal capacity. We submit though that where it is proven in a given case from thorough psychiatric assessment that the person does not have decision-making capacity in a particular domain (for example with respect to hospital admission, treatment, or financial transactions), at a particular time, that the initial legal presumption must also be reassessed. In other words, legal capacity should always be assumed unless evidence, which must include a range of principled and practical checks and balances, proves the contrary. In such cases, safeguards should be pro- portionate to the person’s circumstances, and to how far the measures affect the person’s rights and interests. Additionally, such measures should apply for the shortest time possible, and should be subject to regular review by an independent or judicial body.

Informed consent

Informed consent for treatment or hospital admission is a vital ethical health-care principle, and it should not be over- ridden without stringent consideration and assessment. However, there are times when informed consent is not possible because of the condition of the person and must be superseded, particularly where life is at risk. With respect to life-saving treatment, a person in a coma or a person with severe infectious or neurological disease, for example, might need treatment without his or her informed consent. A universal presumption of legal capacity and the primacy of supported decision-making therefore cannot be absolute and exceptions have to be considered. This must apply to both physical and mental health.

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In our view, excluding any exemption to the presumption of legal capacity due to mental impairment, and as a result not allowing a person with severe mental illness or other impairment to have their circumstance treated as exceptional, might in fact violate his or her rights, and in some circumstances could result in harm to self or to others. (Emphases mine).

People from India, Norway, Denmark, Germany, France, some Advocacy Organisations and other State Parties infact have given opinions that support substitute decision-making21:

In India, Pathare and colleagues found that 93·3% of service user respondents acknowledged the “need to be taken to a clinic or a hospital to see a doctor during a period of decisional incapacity” and various warning signs were identified by the participants themselves including “unable to take decisions on my own”, “hitting my family or pets”, “not interacting with anyone”, and “if I talk too much to myself”. Family members are also usually strong advocates of some form of involuntary admission and treatment and are often the people who make the applications for involuntary admission and treatment when they fail to convince their family member that treatment is needed.

Further, some advocacy organisations submitted statements for consideration by the Committee in finalising the General Comment that raised the question of limited uses of involuntary treatment, including the Swedish National Association for Social and Mental Health (RSMH), the Norwegian Federation of Organizations of Disabled Persons, and the Danish Institute for Human Rights. The Swedish Association wrote: “As stated in this and other contexts RSMH firmly believe that supported decision-making in general is the better option to accommodate and support the individual’s rights both under the convention and in a practical sense......There are however, in our view, under some circumstances an unacceptable level of risk for the individual with seriously diminished mental capacity in the exercise of full agency to the point of self-harm or the right to veto necessary decisions when periculam in mora.”

Several States Parties also submitted statements in support of substituted decision-making in limited circumstances for consideration by the Committee in finalising the General Comment, including Norway, Germany, Denmark, and France. Norway’s statement reflected back to the interpretive declarations made by the country at the time of ratification, reserving the right to withdraw legal capacity and allow for compulsory care or treatment in limited circumstances. Speaking of their initial declarations, Norway stated: “The existence of several declarations similar to the Norwegian declarations, the state reports submitted to the

21 Freeman, Supra Note 10

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Committee and recent national legislation intended to implement the Convention, indicate a general understanding among the States Parties that the Convention allows for substitute decision-making, provided that such provisions meet certain criteria and are subject to legal safeguards.”

Germany reported in its statement, “It seems therefore that the Committee’s interpretation is not shared by the State Parties in general; not even by a substantial minority.”

Germany continued, “While sharing the view that the provision of support for persons with disabilities is the best possible way to help them exercise their rights, Germany remains convinced that there are situations in which persons with disabilities simply are not able to make decisions even with the best support available. Therefore, while representing a shift in focus from substitute decision-making to supported decision- making, the Convention could not and in Germany’s view does not rule out the possibility of substitute decision-making in some cases”.

C. Cambri hates Psychiatrists and Psychiatric drugs -- that is purely opinion-based.

There are statements on Cambri’s position paper that are purely based on opinions not supported by evidence. She explained, among others, that families are primary stress oppressors22:

Several private mental health facilities in the Philippines continue to detain ‘patients’ despite eligibility for release for profiteering reasons in conspiracy with the families of the latter who wish to pass the burden of care...

In many cases, families are primary stress oppressors and oftentimes facilitate involuntary admission to mental facilities of a person with mental illness. To further frustrate matters, those close to us are not likely to offer as much support as they would if we had cancer or even AIDS instead. As already mentioned, most mental health professionals are ignorant of our human rights stated in international laws and perpetuate old harmful practices. A lot of us who sought assistance from medical professionals ended being further violated, abused, and traumatized.

Families and friends are actually very important in alleviating the sickness of a person, such as depression. A website called, Families for

22 Cambri, Supra Note 5

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depression awareness explains23:

Medical professionals often remark on how helpful family members and friends can be in reporting changes in depressed patients' symptoms and ensuring that patients consistently take their prescribed medication.

Families need to work together in managing treatment, since mood changes and behaviors affect the whole family, and many issues are involved in treatment.

It also apparent in her position paper that Cambri hates psychiatrists very much and does not believe in the effectiveness of psychiatric medications.24 She even criticizes the DSM (Diagnostic Statistical Manual) since, according to her, it lacks validity and it is not evidence-based.25

In the website of the American Psychiatric Association, the latest edition of DSM-V is described as the product of more than 10 years of effort by hundreds of international experts in all aspects of mental health.26 Their dedication and hard work have yielded an authoritative volume that defines and classifies mental disorders in order to improve diagnoses, treatment, and research.27 It explains further that it is used by clinicians and researchers to diagnose and classify mental disorders, the criteria are concise and explicit, intended to facilitate an objective assessment of symptom presentations in a variety of clinical settings—inpatient, outpatient, partial hospital, consultation-liaison, clinical, private practice, and primary care.28 Thus, DSM being a product of more than 10 years of many international experts negates Cambri’s claim -- that the diagnoses of psychiatric drugs using such DSM is highly subjective.

Mental Disorders do exist with scientific basis. According to studies, scientists have largely attributed it to the brain’s functioning. Most scientists believe that mental illnesses result from problems with the communication between neurons in the brain called neurotransmission29 and chemical compounds called neurotransmitters. For instance the neurotransmitter serotonin levels of those with depression are lower than normal individuals. Apart from serotonin there could also be other changes 23 Helping Someone Manage Depression available at http://familyaware.org/help-someone-who-has-depression/ (Last visited March 31, 2016)24 Cambri, Supra Note 525 Id.26 DSM-5 at https://www.psychiatry.org/psychiatrists/practice/dsm/dsm-5. (Last visited March 31, 2016)27 Id.28 Id.29Information about Mental Illness and the Brain, available at http://science.education.nih.gov/supplements/nih5/mental/guide/info-mental-b.htm (Last visited: November 26, 2012).

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in other neurotransmitters in the brain.30 In schizophrenia, studies show that there are disruptions in neurotransmitters dopamine, glutamate and norepinephrine.31

Scientists have also identified the risk factors that make one mentally ill. Some of these are environmental, genetic and social factors.32 These factors may also combine and interact that lead to mental illness. Environmental factors such as head injury, poor nutrition, and exposure to toxins (including lead and tobacco smoke) can increase the likelihood of developing a mental illness.33 Illnesses which most likely have a genetic component are autism, ADHD or attention deficit disorder, bipolar disorder and schizophrenia.34

Mental Disorders can also be psychosomatic. Psychosomatic pertains to physical ailments that are caused by or notably influenced by emotional factors,35 such factors that can be attributed to mental disorders. Dr. Jercyl Leilani Demeterio says that mental disorders are as debilitating as any form of illness affecting the person’s ordinary daily activities, even relationships and even results to, if not correlated with, physical illnesses such as heart diseases, thyroidism, stroke, cancer and many others.36

Psychopharmacology on the other hand only proves further that mental disorders have a connection with the brain. Psychopharmacology is the “scientific study of the actions of drugs and their effects on mood, sensation, thinking, and behavior; this field studies a wide range of substances with various types of psychoactive properties, focusing primarily on the chemical interactions with the brain.”37 It is also defined as, “the study of drug-induced changes in mood, thinking, and behavior. These drugs may originate from natural sources such as plants and animals, or from artificial sources such as chemical syntheses in the laboratory. These drugs interact with particular target sites or receptors found in the nervous system to induce widespread changes in physiological or psychological functions.”38

30Id.31Id.32Id.33Id. 34Id.35Dictionary.com, available at http://dictionary.reference.com/browse/psychosomatic (Last visited: November 26, 2012).36Interview with Dr. Jercyl Leilani-Demeterio, Past-PPA President, former Professor of Psychiatry of U.P. College of Medicine and current private practioner at Cardinal Medical Santos Center, Mandaluyong City (August 6, 2011). 37Psychopharmacology From Wikipedia, the free encyclopedia at http://en.wikipedia.org/wiki/Psychopharmacology (last visited May 17, 2012).

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However, as aptly explained by Dr. Jercyl Leilani Demetetrio39, it is a sad state that despite studies and evidence that mental disorders are attributed to brain function there are still many who do not believe that there is a connection of emotions and feelings to the brain.

D. Other Comments on Cambri’s Position Paper.Cambri40 noted in her position paper, where she cited the Youngblood

article for the Philippine Daily inquirer41 of the author of this paper which states in part:

In a 2011 survey, 90 out of the 95 psychiatrist respondents were not familiar with the Magna Carta for PWDs (Corpuz 2013). These blunders only go to show how alienated these doctors really are from the sector.

However the debate over this issue presented above by Cambri is already moot and academic as this survey by the author of this paper was conducted in 2011 when since 2014, the Philippine Psychological Association (PPA) paved the way in crafting a bill known as House Bill 5347. It is also incorrect for Cambri to say that HB 5347, among others, is bereft of any genuine and participatory agreement with organic and primary stakeholders who are the users/survivors of psychiatry and persons with psychosocial disabilities.42 The Bill before it was finalized for submission to the legislators was subjected to two conferences- a pre summit in September 2014 and the Healthy Mind Summit 2 of October 2014.43 The two were attended by various stakeholders - from patients and family, to MH institutions, civil society organizations, media, the PMHA, the PAP, the DOH, the CHR and interested private citizens.44 A WHO representative was present and even praised the initiative as well as the draft bill.45 There were 495 attendees (18 as individuals and rest represented organizations) in the summit proper and over 100 in the pre

38Psychopharmacology, available at http://www.sciencedaily.com/articles/p/psychopharmacology.htm (Last visited: November 26, 2012).39Interview with Dr. Jercyl Leilani Demeterio, past Philippine Psychiatric Association president, former professor of U.P. College of Medicine and current psychiatrist at Cardinal Santos Medical Center, Quezon City (May 15, 2012). 40 Cambri, Supra note 541 Corpuz, Naomi Therese, Mentally Disabled but not crazy, Youngblood Article Published on February 7, 2013 in the Philippine Daily Inquirer, available at http://opinion.inquirer.net/46373/mentally-disabled-but-not-crazy#ixzz43e2Vs54142 Cambri, Supra Note 543 Interview with Dr. June Pagaduan-Lopez at Supra Note 1 and with Dr. Eduardo Tolentino at Supra Note 3.44 Id.45 Id.

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summit.46  Thus, it cannot be said that the primary lobbyists are only psychiatrists as Cambri in her position paper states.

Furthermore, Cambri criticizes further the psychiatrists of PPA by stating in her position paper:

"It is safe to assume that legislators and even government employees working at the CHR simply took the word of the psychiatrists who peddled these bills to them. As evidence, when questioned as to why the filing of the bill, a Chief of Staff of one of the bill’s coauthors, admitted finding nothing wrong with the bill when the doctors led by Dr. June Lopez presented the draft, did not conduct any further study or consultation with the sector at all, and simply signed. Former Gabriela Rep. Liza Maza also confirmed that the latter talked to the militant political party, Makabayan for support of the bill. It is remarkably ironic and terribly alarming that Filipino psychiatrist and professor, Dr. June Pagaduan-Lopez, one of the twelve new members of the UN Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading....." 

However, Dr. June Pagaduan-Lopez and and Dr. Eduardo Tolentino47 defended the psychiatrists especially those who are members of the PPA and said that this observation of Cambri is an insult to the minds of our legislators and members of the CHR who guided them through the crafting of HB 5347, especially Congresswoman Leni Robredo and Senator Pia Cayetano whose offices have been actively engaged in assisting them in shepherding the Bill, not as a final perfect one, but one which the public and Congress can further "craft" to perfection.

Cambri also emphasized in her position paper that the primary lobbyists of the mental health bills are psychiatrists in the Philippines. This is ironic and a hypocritical statement since the UNCRPD which Cambri’s group adhere to is bereft of clinical experts on the General Comment Committee of UNCRPD. Freeman and colleagues found through their research, which states in part48:

The question then becomes, why does the General Comment Committee’s interpretation veer so sharply away from previous intergovernmental agreements and from what is currently deemed best medical practice? The answer possibly lies in two areas, first the near-total absence of clinical experts on the Committee, and second the limited consultation with users.

At inception, no members of the Committee had a clinical or related background (medical, clinical psy- chology, or graduate degree in social work). After the second election,

46 Id.47 Id.48 Freeman, Supra Note 10

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one member of the Committee had a medical degree, who served a 2-year term and was not re-elected. At present, no members of the Committee have a clinical background. It is this iteration of the Committee that finalised the General Comment.

Bartlett writes when discussing Article 17 that members of the medical profession were not involved in the negotiations of the draft Convention. The omission of clinician voices seems to have become a pattern in the later phases of interpreting and implementing, as noted above with respect to the composition of the Committee.

The involvement of service users in drafting the CRPD and the General Comment was prioritised and we fully agree with this principle. We acknowledge that many mental health service users and organisations advocating on their behalf feel strongly that involuntary admission and treatment should be done away with and many such organisations submitted statements to the Committee for consideration in finalising the General Comment. (Emphases mine)

Freeman and colleagues thus suggested that the service user input was not broad enough to represent a range of different service user views. Thus, they further explained in their research that there are countries who are infact in favor of involuntary admission and treatment:

… In responding to a request from the South African Department of Health on whether there should be involuntary admission and treatment, the Gauteng Consumer Advocacy Movement (GCAM), a large user group, said “The GCAM is in favour of involuntary admission...We acknowledge that there are times when we as mental health care users relapse and become mentally unstable and therefore not capable of acting in our own best interest, especially when it comes to treatment and the various ways of obtaining the necessary treatment, which may include involuntary admission. We also acknowledge that at times some of us might become verbally or physically abusive or threatening, and it is then the responsibility of the State to protect those around us and protecting us from harming ourselves” (personal communication). The GCAM did a survey of their members in 2013 and found that 99% felt that “psychiatric medication has resulted in improved mental health and improved quality of life” (personal communication).

Therefore it is not true that in all countries, involuntary admission and treatment will lead to detrimental effects to the mentally ill patient but rather, even improve every aspect of his life.

Questions now arise against Cambri’s position paper: Did she make studies in the Philippines where statistics are provided showing involuntary admission and treatment would result to deleterious effects to the psychiatric patient/s? Are her claims against psychiatrists and psychiatric drugs supported by evidence? The answer to this is a resounding no. All she

17

gave in her position paper are provisions in the UNCRPD and other International Human Rights conventions and citations not specific to the Philippines. No specific study that provides statistics in the Philippines where there is torture and cruelty in involuntary admission and treatment support her claim. An anecdote by one patient who alleges to have been brought to the rehabilitation center by force was shared but one experience coming from such patient does not represent the statistics of the general population of the mentally impaired. It is also notable that her hatred against Filipino psychiatrists, mental health workers and psychiatric medicines are purely opinion-based. Did she consult legal professionals that can give incites on legal jurisprudence regarding international agreements? Again, it is apparent that she is ignorant of Philippine legal jurisprudence. No matter how numerous are her citations on International laws, this cannot hold water as police power of the state can never be curtailed by international agreements, even that by the United Nations.

II. NEED FOR INSURANCE COVERAGE NOT ONLY FOR THE ACUTE BUT ALSO FOR CHRONIC MENTAL ILLNESSES

Insurance as defined in the Insurance Code of the Philippines is an agreement whereby one undertakes for a consideration to indemnify another against loss, damage, or liability arising from an unknown or contingent event.49 Although this definition may sound business for some, which objectively is for private insurance companies and corporations, it is legitimate for it serves as protection where the risk insured against by the insured is compensated by the insurer when this contingent event arises. One of the risks highly insured is health.

Health insurance in the Philippines started with Philippine Medical Care Act of 1969 (RA 6111) which was organized and implemented by the Government Service Insurance System (GSIS) and Social Service Security (SSS).50 To target the lower income and non-salaried populations, it later tied-up with Local Government Units (LGUs) and Health Maintenance Organizations (HMOs).51 In the early 1990s studies were made for the need of social based insurance. Hence in 1995 under President Fidel Ramos’s leadership, the National Health Insurance of the Philippines was made into effect known as RA 7875. RA 7875 gave birth to Philhealth which became

49Pres. Dec. No. 1460, §2 (1978). This is the Insurance Code of the Philippines.50MARIA OFELIA ALCANTARA, FINANCING HEALTH CARE: THE NATIONAL HEALTH INSURANCE SYSTEM (eds. Ma. Luz Querubin & Sonia Rodriguez, BEYOND THE PHYSICAL: THE STATE OF THE NATION’S MENTAL HEALTH REPORT) (2002).51Meeting of Minds, available at http://www.medobserver.com/article.php?ArticleID=440 (last visited May 17, 2012).

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the driver in implementing the first and only social based insurance in the Philippines.

In a benefit package of R.A. 7875 of 1995 which states:

SEC. 10. Benefit Package. - Subject to the limitations specified in this Act and as may be determined by the Corporation, the following categories of personal health services granted to the member or his dependents as medically necessary or appropriate, shall include:

a) Inpatient hospital care:

1) room and board; 2) services of health care professionals; 3) diagnostic, laboratory, and other medical examination services; 4) use of surgical or medical equipment and facilities; 5) prescription drugs and biologicals; subject to the limitations stated in Section 37 of this Act; 6) inpatient education packages;

b) Outpatient care:1) services of health care professionals; 2) diagnostic, laboratory, and other medical examination services; 3) personal preventive services; and 4) prescription drugs and biologicals, subject to the limitations described in Section 37 of this Act;

c) Emergency and transfer services; and

d) Such other health care services that the Corporation shall determine to be appropriate and cost-effective: Provided, That the Program, during its initial phase of implementation, which shall not be more than five (5) years, shall provide a basic minimum package of benefits xxx. (Emphasis Supplied)

There has been no mandate of insurance given to the mentally-ill. Since the first health insurance was created in 1969, there has been no insurance given to any mental illness only until a circular was issued in 2010.

Figure 1.

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RA 7875 National Health Insurance Act 1995

RA 7875 National Health Insurance Act 1995(as amended by RA 9241)

PhilHealth Circular No. 09-2010

SEC. 11. Excluded Personal Health Services– The benefits granted under this Act shall not cover expenses for the services enumerated hereunder except when the Corporation, after actuarial studies, recommends their inclusion subject to the approval of the Board:a) non-prescription drugs and devices;b) out-patient psychotherapy and counselling for mental disorders;c) drug and alcohol abuse or dependency treatment;d) cosmetic surgery;e) home and rehabilitation services;f) optometric services;g) normal obstetrical delivery; andh) cost-ineffective procedures which shall be defined by the Corporation. xxx (emphasis supplied)

SEC. 11. Excluded Personal Health Services – The benefits granted under this Act shall not cover expenses for the services enumErated hereunder except when the Corporation, after actuarial studies, recommends their inclusion subject to the approval of the Board:a) non-prescription drugsand devices;b) alcohol abuse or dependency treatment;d) cosmetic surgery;e) optometric services;f) fifth and subsequent normal obstetrical deliveries; andg) cost-ineffective procedures which shall be defined by the Corporation.

Coverage Rules of Psychiatric Conditions Requiring AdmissionIn order to facilitate reimbursement of claims on confinements for psychiatric conditions, the following rules are hereby issued:

1. Claims for mental and behavioral disorder shall be compensable only for patients with acute attacks or episodes admitted for any of the following reasons:a. When

aggressive of assaultive behavior presents danger to self or others;

b. When the patient is

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suicidal;c. When the

patient becomes manic or depressed and there is gross impairment in judgement and reality testing;

d. When medication side effects became disabling or potentially life threatening (e.g. severe parkinsonism, severe tardive dyskinesia, neuroleptic malignant syndrome);

e. For special medical procedures such as electric convulsive therapy. xxx

(emphasissupplied)

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Above are the provisions and the circular implemented and issued respectively by the PhilHealth affecting mental illness in chronological order. The lack of insurance coverage prior PhilHealth Circular No. 09-2010 was made categorical under sec. 11 of the National Health Insurance Act of 1995 (RA 7875):

SEC. 11. Excluded Personal Health Services – The benefits granted under this Act shall not cover expenses for the services enumerated hereunder except when the Corporation, after actuarial studies, recommends their inclusion subject to the approval of the Board: xxxb) out-patient psychotherapy and counselling for mental disorders;

RA 9241, The Act Amending the National Health Insurance in 2003 amended RA 7875, particularly the benefit “b) out-patient psychotherapy and counselling for mental disorders” of section 11 as shown in the first column of Figure 1 above. This benefit was removed (as shown in the second column of Figure 1) as one of those excluded for personal benefits thus making it vague if mental disorders are now covered by PhilHealth.

Although the present psychiatric conditions covered was made clear after 8 years when PhilHealth Circular No. 09-2010 was issued ,52 it is surprising to know that out of 94 respondent- psychiatrists in a survey done by random sampling nationwide in 2011, 51 of them (54.26% of the respondents) did not know that such health insurance coverage for their patients exists.53

This only goes to show that there is poor dissemination of information by the PhilHealth to the people, especially psychiatrists – the most important health provider for the mentally disabled.

Although some of the guiding principle and policies of National Health Insurance of 1995 are health for all especially the poor, universality and equity as provided in section 2:

SEC. 2. Declaration of Principles and Policies. – Section II, Article XIII of the 1987 Constitution of the Republic of the Philippines declares that the State shall adopt an integrated and comprehensive approach to health development which shall

52Philhealth Circ. No. 09-2010. This is the Coverage Rules of Psychiatric Conditions Requiring Admission (hereinafter “PH Circular 09-10”). 53Survey conducted by Naomi Therese F. Corpuz on Psychiatrist-Respondents of Philippine Psychiatric Association, Inc. (PPA), at Dusit Thani Manila, Makati City (July 28-30, 2011).

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endeavor to make essential goods, health and other social services available to all the people at affordable cost. Priority of the needs of the underprivileged, sick, elderly, disabled, women, and children shall be recognized. Likewise, it shall be the policy of the State to provide free medical care to paupers.

In the pursuit of a National Health Insurance Program, this Act shall adopt the following guiding principles:xxxb) Universality – The Program shall provide all citizens with the mechanism to gain financial access to health services, in combination with other government health programs.

The National Health Insurance Program shall give the highest priority to achieving covErage of the entire population with at least a basic minimumpackage of health insurance benefits;

c) Equity – The Program shall provide for uniform basic benefits. Access to care must be a function of a person’s health needs rather than his ability to pay;xxx (emphasis supplied)

it can be gleaned that the PhilHealth insurance coverage for mental disorders as issued in its PH Circular 09-10 is limited only to acute inpatient care (as shown in the third column of Figure 1 above).54

54Phil Health Circular No. 09-2010 states: Coverage Rules of Psychiatric Conditions Requiring Admission

In order to facilitate reimbursement of claims on confinements for psychiatric conditions, the following rules are hereby issued:1. Claims for mental and behavioral disorder shall be

compensable only for patients with acute attacks or episodes admitted for any of the following reasons:

a) When aggressive of assaultive behavior presents danger to self or others;

b) When the patient is suicidal;c) When the patient becomes manic or depressed and

there is gross impairment in judgement and reality testing;

d) When medication side effects became disabling or potentially life threatening (e.g. severe parkinsonism, severe tardive dyskinesia, neuroleptic malignant syndrome);

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Apart from being limited, PhilHealth did not operationally define what “acute” is and how different it is from “chronic.” Thus, it can only be assumed that the terms “acute” and “chronic” are understood in their layman’s terms: “acute” for short period attacks55 and “chronic” for persistent and long-lasting attacks.56

It is important to distinguish the two because it is only inpatients with “acute” attacks or episodes are covered in the PH Circular 09-10. The Circular merely gave five reasons where this acute inpatient care is limited to, which are:

(a) when aggressive of assaultive behavior presents danger to self or others; (b) when the patient is suicidal; (c) when the patient becomes manic or depressed and there is gross impairment in judgement and reality testing; (d) when medication side effects became disabling or potentially life threatening (e.g. severe parkinsonism, severe tardive dyskinesia, neuroleptic malignant syndrome); (e) for special medical procedures such as electric convulsive therapy.(Emphases Supplied)

This means that even if a mentally-ill patient is confined for acute (short period) attacks, but for reasons that do not fall under the five conditions above, he or she will not be covered by PhilHealth insurance. According to Dr. Israel Francis Pargas57, patients confined with chronic (long-lasting) physical illnesses such as leukemia or in need of dialysis for kidney failure are covered by Philhealth when they are confined, same with mentally-ill inpatients also confined falling under the acute attacks or episodeslimited to the five conditions enumerated. This also means, persons with chronic physical illnesses confined are covered by PhilHealth but not persons with chronic mental illnesses. This is questionable. Why only confine insurance with inpatient acute episodes limited to only 5 conditions but not mental illnesses that can also be chronic? By this fact

e) For special medical procedures such as electric convulsive therapy.xxx (Emphasis Supplied)

55 Acute (medicine), available at http://en.wikipedia.org/wiki/Acute_%28medicine%29 (Last visited: January 18, 2013). 56Chronic (medicine), available at http://en.wikipedia.org/wiki/Chronic_%28medicine%29 (Last visited: January 18, 2013). 57Interview with Dr. Israel Francis Pargas, Senior Manager for Benefits Development and Research of PhilHealth, Pasig City (July 22, 2011).

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alone there is already a unfair and unjust treatment of PhilHealth by giving priority in insurance coverage to other chronic ailments subject to confinement that are physical but not mental illnesses.

Unfortunately these chronic mental illnesses are not in equal footing with other chronic physical illnesses under PhilHealth Insurance. This then could lead to more deleterious effects if inpatient chronic mental illnesses are not covered by insurance while other forms of inpatient illnesses are - chronic or acute.

Evidence shows that delays in treatments for mental disorders can lead to increased morbidity and mortality and one of the determinants for this delay is income and lack of health insurance coverage.58 Less well known is the fact that those with severe mental illness (SMI) are less likely to have health insurance coverage of any kind.59 There have been reports that chronic illnesses such as mental health problems, including depression and schizophrenia, are among the 10 leading causes of disability worldwide.60 According to a World Bank study, depression will become the second leading cause of disability in 2010.61Clinical depression is a common mental disorder that affects about 121 million people across the globe.62 It is estimated that by 2020, clinical depression will be the second most leading cause of disability worldwide – second only to cardiovascular illness.63 If these are the cases, and at the same time confinement of such chronic mental illnesses are not covered by Philhealth, mentally-ill adults are more likely to be unemployed relative to other adults.64 Multivariate studies of labor force outcomes have generally found unemployment levels to be lower among persons with mental illness.65 If they are unemployed, this would also result to non-eligibility for employer sponsored insurance, the primary source of health care for elderly adults.66 They also become ineligible to insurance disability benefits from GSIS or SSS if they stop working for the government or a private employer respectively.

58Catherine Mclaughlin, Delays in Treatment in Mental Disorders and Health Insurance Coverage, 39 Health Serv. Res. 221-224 (2004).59Id. 60 Sol Jose Vanzi, Mental Health Problems: Psychiatrists Tap Social Science, available at http://www.newsflash.org/2004/02/si/si001922.htm (last visited October 25, 2004).61 Id.62Cara Davis, 7 Ways to Ward off Clinical Depression, ¶ 3, at http://halogentv.com/articles/7-ways-to-ward-off-clinical-depression/ (last visited: June 20, 2011).63 Id.64Catherine Mclaughlin, Delays in Treatment in Mental Disorders and Health Insurance Coverage, 39 Health Serv. Res. 221-224 (2004).65Id. 66Id.

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Although the basis of Philhealth in all its insurance coverage are actuarial studies, it can be of help to widen the scope given to mentally-ill patients if there are psychiatrists who can explain that early intervention in treatment of mental illness lessens its reccurrence or even with greater probability to be completely cured. Onset of mental illness occurs during late adolescence or young adulthood – especially the aged 25-34 years.67 This is the same age group that has the highest level of uninsurance; in part because mental illness often begins during late adolescence or young adulthood, it is more likely to have greater impact on educational attainment and income than many other chronic conditions.68

Philhealth is not the only insurance corporation which limits its insurance coverage to the mentally ill but also private insurance companies such as HMOs (Health Maintenance Organizations). Although under the National Insurance Code of the Philippines (RA 7875) these HMOs can be accredited, to date, there has been no accredited HMO by PhilHealth.69

HMOs also do not provide any form of insurance, inpatient or out-patient, for the mentally disabled for the belief that mental disorders are chronic and will consume too much of their funds. HMOs and other entities must however be educated and informed that mental illnesses that are not treated early can lead to worse conditions. If there is early intervention and compliance to treatment for mental disorders, which can be done through the support of an insurance coverage, there is shorter duration for the improvement, and lesser dosages and treatment needed70. If there is decrease in dosages and maintenance treatment, then this will lead to decrease in expenses, decrease in hospitalization and decrease for the need for insurance benefits. There is also a possibility of completely not using such insurance if the patient is completely cured. Early treatment of disorders like depression, anxiety and drug and alcohol dependence can cut the risk that the problem will persist past young adulthood, noted by the researchers, led by Dr. Carlos Blanco of the New York State Psychiatric Institute at Columbia University.71

However, there is a poor dissemination of information of the benefits and privileges given to mentally ill patients covered by the Philippine Health 67Id. 68Id.69Interview with Dr. Israel Francis Pargas, supra note 57.70Interview with Dr. Jercyl Leilani-Demeterio, Past-PPA President, former Professor of Psychiatry of U.P. College of Medicine and current private practioner at Cardinal Medical Santos Center, Mandaluyong City (August 6, 2011).71Reuters, Mental health disorders common in young adults: survey, at http://www.abs-cbnnews.com/lifestyle/12/14/08/mental-health-disorders-common-young-adults-survey (last visted May 19, 2012).

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Insurance (PhilHealth). PhilHealth Insurance coverage for the mentally ill is limited only to acute inpatient care which must fall under 5 conditions enumerated by PH Circular 09-10. PhilHealth does not cover chronic mental illnesses that must be subject also to confinement – which only shows the unjust treatment to mentally ill patients. This PH Circular 09-10 must be amended by making known by the DOH, private sectors, mental health professionals such as psychiatrists that mentally ill patients with chronic illnesses subject to confinement must be covered by insurance of PhilHealth as evidence shows that delays in treatments for mental disorders can lead to increased morbidity and mortality and one of the determinants of this delay is income and lack of health insurance coverage.

III. COMMENTS ON LAWS AFFECTING MENTAL HEALTH

Filipinos with mental illness are dicriminated against in various forms where persons afflicted with other forms of illnesses are given more benefits and privileges in legislative policies.

A. Republic Act 7277 (Magna Carta for Disabled Persons)

Republic Act 7277 was approved on March 24, 1992 entitled, “An Act Providing for the Rehabilitation, Self-Development and Self Reliance of Disabled Persons And Their Integration Into The Mainstream Of Society And For Other Purposes.” This is otherwise known as the Magna Carta for Disabled Persons which provides rights and privileges of disabled persons under its Title II which are Equal Opportunity for Employment, Access to Quality Education, National Health Program, Auxiliary Social Services, Telecommunications and Accessibility. Although these six are listed in the law with comprehensive descriptions and how they are adopted, people with mental disability are marginalized in the real scenario and other people with illnesses are given more benefits, though not apparent.

Section 5 of Title II states:

Section 5. Equal opportunity for employment. No disabled person shall be denied access to opportunities for suitable employment. A qualified disabled employee shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able bodied person.Five per cent of all casual, emergency and contractual positions in the Departments of Social

27

Welfare and Development, Health, Education, Culture and Sports, and other government agencies, offices or corporations engaged in social development shall be reserved for disabled persons.(Emphases Supplied).

As mentioned above, “A qualified disabled employee shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able bodied person.” Persons with physical disabilities could easily fit the term qualified disabled employee but not for the mentally disabled. In Chapter VI of Title II of R.A. 7277 Section 25, it implements Batasang Pambansa 344, which states:

Sec.  25. Barrier-Free Environment. — The State shall ensure the attainment of a barrier-free environment that will enable disabled persons to have access in public and private buildings and establishments and such other places mentioned in Batas Pambansa Bilang 344, otherwise known as the "Accessibility Law.

The national and local governments shall allocate funds for the provision of architectural facilities or structural features for disabled persons in government buildings and facilities.(Emphases Supplied).

Batasang Pambansa 344, Section 1 states:

Section 1. In order to promote the realization of the rights of disabled persons to participate fully in the social life and the development of the societies in which they live and the enjoyment of the opportunities available to other citizens, no license or permit for the construction, repair or renovation of public and private buildings for public use. Educational institutions, airports, sports and recreation centers and complexes, shopping centers or establishments, public parking places, work-places, public utilities, shall be granted or issued unless the owner or operator thereof shall install and incorporate in such building, establishment, institution or public utility, such architectural facilities or structural

28

features as shall reasonably enhance the mobility of disabled persons such as sidewalks, ramps, railings and the like. If feasible, all such existing buildings, institutions, establishments, or public utilities to be constructed or established for which licenses or permits had already been issued may comply with the requirements of this law: Provided, further, That in case of government buildings, street and highways, the Ministry of Public Works and Highways shall see to it that the same shall be provided with architectural facilities or structural features for disabled persons. In the case of the parking place of any of the above institutions, buildings, or establishment, or public utilities, the owner or operator shall reserve sufficient and suitable space for the use of disabled persons. (Emphases Supplied)

Again, notice the term “disabled persons” is used in the above-quoted provision but the cited law only benefits the physically disabled but not persons afflicted with mental illnesses.

Apart from this there are still discriminations against mentally ill patients particulary in employment and education.

Overseas contract workers for instance, prior to departure, must undergo neuropsychiatric screening and those found with symptoms of mental distress and symptoms are not certified to leave for overseas employment.72 Any reapplication must be accompanied by psychiatric clearance, according to a noted psychiatrist Dr. Bernardo Conde of University of Santo Tomas.73 This regulation of the Department of Labor and Employment (DOLE) is unfair and a total violation of social justice. With this regulation those who are afflicted with mental disorders have no opportunity of having greener pastures abroad to help their families but those with physical disabilities do since the latter do not have the same kind of regulation. Yet, according to Dr. Jercyl Leilani Demeterio, with proper treatment or psycho-therapy and medication, workers with mental illnesses can function as normal individuals.74 If this is the case why does the DOLE not accept them with the same regulation as normal individuals?

72Dr. Bernardo Conde, Philippines mental health country profile, International Review of Psychiatry, 166 (2004). 73Id. 74Interview with Dr. Jercyl Leilani Demeterio, Supra Note 36.

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One reason for this is poverty. Although the Magna Carta For Disabled Persons in its policy, states that:

Sec. 2. Declaration of Policy — The grant of the rights and privileges for disabled persons shall be guided by the following principles:

(a) Disabled persons are part of Philippine society, thus the State shall give full support to the improvement of the total well-being of disabled persons and their integration into the mainstream of society. Toward this end, the State shall adopt policies ensuring the rehabilitation, self-development and self-reliance of disabled persons. It shall develop their skills and potentials to enable them to compete favorably for available opportunities. 

(b) Disabled persons have the same rights as other people to take their proper place in society. They should be able to live freely and as independently as possible. This must be the concern of everyone — the family, community and all government and nongovernment organizations. Disabled persons' rights must never be perceived as welfare services by the Government.

(c) The rehabilitation of the disabled persons shall be the concern of the Government in order to foster their capacity to attain a more meaningful, productive and satisfying life. To reach out to a greater number of disabled persons, the rehabilitation services and benefits shall be expanded beyond the traditional urban-based centers to community based Programs, that will ensure full participation of different sectors as supported by national and local government agencies.  xxx (Emphases Supplied).

Not all Filipinos afflicted with mental illnesses can afford to have the maintainance treatment and medication. In the Philippines alone, a disability survey done in 2000 by the National Statistics Office (NSO) found out that mental illness was the third most common form of disability.75 Prevalence 75Interview with Mr. Nelson Mendoza, National Program Coordinator, National Mental Health Program and Degenerative Disease Office, Department of Health, Philippines (March 30, 2012).

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rate of mental disorders were 88 per 100,000 populations and was highest among the elderly group. This finding was supported by a more recent data from the social weather survey commissioned by the Department of Health (DOH) in 2004. 76 It revealed that 0.7% of the total household have a family member afflicted with mental disability.77

The policy of the Magna Carta cited above which states that (a) the State shall give full support to the total well-being of the disabled, (b) Disabled persons have the same rights as other people to take their proper place in society, (c) The rehabilitation of the disabled persons shall be the concern of the Government in order to foster their capacity to attain a more meaningful, productive and satisfying life, are not fully enforced because of the miniscule budget alloted by the Government to mental health.

Figure 2.78

The Philippine Government only gave 5% of its DOH budget to the National Mental Health Program where only 5% of which are for health care expenditures by the government health department directed towards mental health. Of all expenditures on mental health, 95% are spent on the operation, maintenance and salary of the personnel of mental hospitals. The percentage of the population that has free access to psychotropic medication is unknown.79 For those that pay out of pocket, the cost of antipsychotic medication is 0.46% and antidepressant medication is 11.4% of the minimum daily wage.80

76Id.77Id.78Id.79Id.80Id.

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There is also a scarce resource of Mental Health Workers. In a study conducted by World Health Organization in 2007:Figure 3.

# of MentalHealth Workers per 100,000 pop

Psychiatrists* 412 – 0.42

Nurses 769 – 0.91

Psychologists 119 – 0.14

Social Workers 74 – 0.08

Occupational Therapists 72 – 0.08

Others 1,372 – 1.62

*237 (58%) of the Psychiatrists practice in the NCR

Out of 412 Psychiatrists in the Philippines, a majority of 237 of them are based in the National Capital Region, making medical treatment from health therapists out of reach to patients from provinces and far-flung barrios. Apart from this, The majority of mental health facilities are still located in the National Capital Region.81 Hence, access to mental health facilities is uneven across the country, favoring those living near the main cities.82

In education on the other hand, a student may also suffer from schizophrenia, ADHD (Attention Deficit Disorder), bipolar disorder, clinical depression and anxiety disorders among others.83

A student with a mental disorder must be given considerations similar to students with physical disabilities. If railings and ramps are built for students with physical handicap, is there no special treatment that can be given to mentally ill students? Some authorities, particularly professors and instructors find this questionable since most have the impression that mental disorders are not life-threatening but in reality, they are as debilitating as any form of illness that can even lead to death. In a World Health Organization Report of 2007, more than 150 million people suffer from depression at any point in time and nearly 1 million commit suicide every year.84

81Interview with Mr. Nelson Mendoza, Supra Note 7582Id.83Interview with Dr. Jercyl Leilani Demeterio, Supra Note 36.84Department of Health Administrative Order No. 9 (2007).

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Special considerations though are given to disabled students that are categorically stated in Section 12 of Title II of R.A. 7277:

Sec.  12. Access to Quality Education. — xxxThe State shall take into consideration the special requirements of disabled persons in the formulation of educational policies and Programs. It shall encourage learning institutions to take into account the special needs of disabled persons with respect to the use of school facilities, class schedules, physical education requirements, and other pertinent consideration.

The State shall also promote the provision by learning institutions, especially higher learning institutions of auxiliary services that will facilitate the learning process for disabled persons. (Emphases Supplied).

What this “pertinent consideration” of the above-cited provision means though is not specific. Legislators must specify the meaning of “pertinent consideration” or at least the National Mental Health Program of the Department of Health must make a separate Implementing Rule and Regulation for Schools with mentally ill patients that will specifically describe these pertinent considerations and mandate such schools to implement such rules. Although Chapter II on Education of R.A. 7277 has a specific provision on Special Education which states:

Section.  14. Special Education. — The State shall establish, maintain and support complete, adequate and integrated system of special education for the visually impaired, hearing impaired, mentally retarded persons and other types of exceptional children in all regions of the country. Toward this end, the Department of Education, Culture and Sports shall establish, special education classes in public schools in cities, or municipalities. It shall also establish, where viable, Braille and Record Libraries in provinces, cities or municipalities. Xxx (Emphases Supplied).

and Section 17 for State Universities and Colleges:

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Sec.  17. State Universities and Colleges. — If viable and needed, the State University or State College in each region or province shall be responsible for (a) the development of material appliances and technical aids for disabled persons; (b) the development of training materials for vocational rehabilitation and special education instructions; (c) the research on special problems, particularly of the visually-impaired, hearing-impaired, speech-impaired, and orthopedically-impaired students, mentally retarded, and multi-handicapped and others, and the elimination of social barriers and discrimination against disabled persons; and (d) inclusion of the Special Education for Disabled (SPED) course in the curriculum. xxx (Emphases Supplied).

The provision makes use of the term “mentally retarded” which only includes those pupils and students with “subaverage intelligence and impaired adaptive functioning.”85 However mental retardation is not synonymous to mental disability or mental illness. Mental Retardation is only one of the kinds of mental illness. In fact there are persons with mental illness with superior intelligence which is the total opposite of mentally retarded persons.86

Section 12 and Section 17 of Title II of Magna Carta for Disabled Persons are discriminatory as it only provides privileges to the “visually-impaired, hearing-impaired, speech-impaired, orthopedically-impaired students, mentally retarded, and multi-handicapped” but there is no mention of mentally disabled persons.

A sound suggestion was made by Carla Laforteza, a bipolar patient and a physical therapist student of University of Santo Tomas with superior intelligence. She said that the Government must create special schools for the mentally ill87 – those suffering not only of mental retardation but all types of mental disorders, such as the common major illness of clinical depression. Though it is difficult to establish special schools for courses such as medicine and law, a special class that is segregated can be created solely for them. The schools can hire certified psychiatrists and clinical psychologists. These schools and/or special classes can be regulated and monitored by these certified psychiatrists and clinical psychologists to determine the veracity 85Mental Retardation, http://emedicine.medscape.com/article/1180709-overview (Last visited: January 14, 2013). 86Interview with Dr. Jercyl Leilani Demeterio, Supra Note 36 87Interview with Carla Laforteza, Physical Therapist Student of University of Santo Tomas (November 13, 2012).

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and gravity of the illness of the student-patient from time to time and assess their capacity to learn. From these assessments, school rules and regulations can be adjusted accordingly and not prevent a student from becoming a doctor, lawyer or inhibit them from finishing other courses they want to pursue.

B. The 20% Discount for PWDs.

During the term of former President Gloria Macapagal Arroyo, Republic Act No. 9422 was enacted entitled as, “An Act Amending Republic Act No. 7277, Otherwise known as the Magna Carta for Persons with Disability as Amended, and For Other Purposes Granting Additional Privileges and Incentives and Prohibitions on Verbal, Non-Verbal Ridicule and Vilification Against Persons with Disability.” It is the objective of Republic Act No. 9442 to provide persons with disability, the opportunity to participate fully into the mainstream of society by granting them at least twenty percent (20%) discount in all basic services. Section 1 of R.A. 9422 states:

SECTION 1. A new chapter, to be denominated as "Chapter 8. Other Privileges and Incentives" is hereby added to Title Two of Republic Act No. 7277, otherwise known as the "Magna Carta for Disabled Persons", with new Sections 32 and 33, to read as follows:

"CHAPTER 8. Other Privileges and Incentives

"SEC. 32. Persons with disability shall be entitled to the following:

(a) At least twenty percent (20%) discount from all establishments relative to the utilization of all services in hotels and similar lodging establishments; restaurants and recreation centers for the exclusive use or enjoyment of persons with disability;

(b) A minimum of twenty percent (20%) discount on admission fees charged by the theaters, cinema houses, concert halls, circuses, carnivals and other similar places of culture, leisure and amusement for the exclusive use or enjoyment of persons with disability;

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(c) At least twenty percent (20%) discount for the purchase of medicines in all drugstores for the exclusive use or enjoyment of persons with disability;

(d) At least twenty percent (20%) discount on medical and dental services including diagnostic and laboratory fees such as, but not limited to x-rays, computerized tomography scans and blood tests, in all government facilities, subject to guidelines to be issued by the Department of Health (DOH), in coordination with the Philippine Health Insurance Corporation (PHILHEALTH);

(e) At least twenty percent (20%) discount on medical and dental services including diagnostic and laboratory fees, and professional fees of attending doctors in all private hospitals and medical facilities, in accordance with the rules and regulations to be issued by the DOH, in coordination with the PHILHEALTH;

(f) At least twenty percent (20%) discount on fare for domestic air and sea travel for the exclusive use or enjoyment of persons with disability;

(g) At least twenty percent (20%) discount in public Railways, skyways and bus fare for the exclusive use and enjoyment of persons with disability;

Xxx(Emphases Supplied).

Under the law above, there are seven (7) types of basic services where persons with disability can avail of atleast twenty percent (20%) discount.

The Department of Health adopted Administrative Order No. 9 Series of 2011 (AO 09-11) entitled, “Guidelines to Implement the Provisions of Republic Act 9422 , Otherwise Known as ‘An Act Amending Republic Act 7277, otherwise known as Magna Carta for Persons, and for other Purposes,’ for the provision of medical and related discounts and special privileges,” which is an order issued to support the Implementing Rules and Regulations of R.A. 9422. Under this Order, the objective is to prescribe procedures and guidelines for the implementation of the 20% discount in all health related services of Persons with Disabilities (PWDs).

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Although Republict Act 9422 is a big step in alleviating the financial burden of PWDs, it is not without any disadvantage to persons with mental illness. In relation to Republic Act 9422, to avail of the discount, a person with disability must present his//her identification card issued by the National Council on Disability Affairs (NCDA) or by the Local Government Units (LGUs) where he/she resides.88 In addition, a purchase booklet issued by the LGUs to persons with disabilities for free shall be presented every time a purchase of medicine is made.89 Hence, although a mentally ill person can avail of a discount in in public railways, skyways and bus fare or in purchasing medicines there is an undeniable fact that there is a stigma attached to persons with mental disorder while there is none to those who are suffering from other illnesses. If an illness of a patient is not apparent, it is inevitable that one of the assumptions of the persons seeing a PWD identification card is that the patient who owns the card has a mental illness which he can possibly identify as “sirang ulo.” Infact a mother of an autistic child said that she does not want to avail of the PWD identification card because she doesn’t want anybody to identify that her daughter is, “sirang ulo,”90 though a mentally ill patient with a PWD identification card is not insane or “sirang ulo” per se.

It is best if the legislators of R.A. 9422 and NCDA have thought of a different term instead of “Person With Disability (PWD)” that will not identify the patient, with non- apparent illness, in any way to be suffering from mental illness. “Persons With Discounts”, “Persons With Special Discounts” are terms that can be used for instance that will not identify the patient to be suffering with any form of mental illness.

Also, in the experience of Perlas Reodica, when she bought the generic medicine Clonazepam, a sedative for her anxiety disorder with her PWD identification card in a known drugstore in Sta. Mesa, Manila, three of the pharmacists told her, “Drug addict ka ano?” (You are a drug addict aren’t you?).91 This experience only shows the discrimination and ridicule that the PWD identification card can cause to a mentally ill patient. This also shows that there is a need for a wider dissemination of information of R.A. 9422 particularly “Prohibitions on Verbal, Non-verbal Ridicule and Vilification Against Persons With Disability”92 and its penal clause93.

88 National Council for Disability Affairs, Administrative Order No. 1, Series of 2008.89Id. 90Interview with Mrs. Gene Lesaca, mother of a a 10 year old autistic child (October 7, 2012). 91 Interview with Perlas Reodica, patient with anxiety disorder (November 12, 2012). 92Rep. Act. No. 9244 §2 (2007). This is known as the Amendment to R.A. 7277 otherwise known as the Magna Carta for Disabled Persons of 2007 (hereinafter “R.A. No. 9422)93§3.

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Another problem caused due to poor dissemination of information of R.A. 9422 is the discounted professional fees in private health facilities for in-patient and outpatient medical, dental, and other health care professional services where the corresponding physician or dentist must issue a corresponding official receipt.

Figure 4. Survey on 95 Psychiatrist-Respondents94

Have you heard of R.A. 7277 Magna Carta for Disabled Persons as amended by R.A. 9422?

Do you think you need to know more about the Magna Carta for Disabled Persons?

YES 58 90NO 37 5

In a survey conducted in 2011, although 58 out of 95 psychiatrist-respondents have heard of the Magna Carta for Disabled Persons, 90 of the 95 respondents are ignorant of the contents of the said law. It is uncertain if this percentage of ignorance holds true today. If it does, how can the patient avail of its twenty percent discount from her doctor if her own physician is not aware of the said law?

The downside however, if psychiatrists will learn of the twenty percent discount that can be availed of by their patients under R.A. 9422, since there is no ceiling price in their professional fees, they would be inclined to jack up their prices.

94Survey conducted by Naomi Therese F. Corpuz, Supra Note 53.

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BIBLIOGRAPHY

Laws

Department of Health Administrative Order No. 9 (2007).

National Council for Disability Affairs, Administrative Order No. 1, Series of 2008.

Phil Health Circular No. 09-2010

Presidential Decree No. 1460. This is the Insurance Code of the Philippines.

Republic Act 7277. This is the Magna Carta for Disabled Persons.

Republic Act. 9244. This is the Amendment to R.A. 7277 otherwise known as the Magna Carta for Disabled Persons of 2007

Rules of Court

Books

Antonio Bautista, BASIC SPECIAL PROCEEDINGS (2004).

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MARIA OFELIA ALCANTARA, FINANCING HEALTH CARE: THE NATIONAL HEALTH INSURANCE SYSTEM (eds. Ma. Luz Querubin & Sonia Rodriguez, BEYOND THE PHYSICAL: THE STATE OF THE NATION’S MENTAL HEALTH REPORT) (2002).

Cases

Inchong v. Hernandez, 101 Phil.,1155 (1957)

Lim v. Executive Secretary, 380 SCRA 739 (2002)

Philippine Exporters of Service Associations, Inc. v. Drilon, G.R. No. 81958, June 30, 1988

JournalCatherine Mclaughlin, Delays in Treatment in Mental Disorders and Health Insurance Coverage, 39 Health Serv. Res. 221-224 (2004).

Dr. Bernardo Conde, Philippines mental health country profile, International Review of Psychiatry, 166 (2004).

Journal OnlineMelvyn Colyn Freeman et.al., Reversing hard won victories in the name of human rights: a critique of the General Comment on Article 12 of the UN Convention on the Rights of Persons with Disabilities (Lancet Psychiatry 2015 Journal), Published Online on July 6, 2015. Available at http://dx.doi.org/10.1016/ S2215-0366(15)00218-7 (Last visited: March 23, 2016).

PaperCambri, Janice Marie, M.A., Founder of Transforming Communities for Inclusion of Persons with Psychosocial Disabilities-Philippines (TCI-Phil) and wrote a position paper entitled, “NO TO MENTAL HEALTH LAWS THAT ARE NON-COMPLIANT WITH INTERNATIONAL HUMAN RIGHTS CONVENTIONS.”

Websites

Acute (medicine), available at http://en.wikipedia.org/wiki/Acute_%28medicine%29 (Last visited: January 18, 2013). Chronic (medicine), available at http://en.wikipedia.org/wiki/Chronic_%28medicine%29 (Last visited: January 18, 2013).

Cara Davis, 7 Ways to Ward off Clinical Depression, ¶ 3, at http://halogentv.com/articles/7-ways-to-ward-off-clinical-depression/ (last visited: June 20, 2011).

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Corpuz, Naomi Therese, Mentally Disabled but not crazy, available at http://opinion.inquirer.net/46373/mentally-disabled-but-not-crazy#ixzz43e2Vs541 (Last Visited April 1, 2016).

Dictionary.com, available at http://dictionary.reference.com/browse/psychosomatic (Last visited: November 26, 2012).

DSM-5 at https://www.psychiatry.org/psychiatrists/practice/dsm/dsm-5. (Last visited March 31, 2016)

Helping Someone Manage Depression available at http://familyaware.org/help-someone-who-has-depression/ (Last visited March 31, 2016)

Information about Mental Illness and the Brain, available at http://science.education.nih.gov/supplements/nih5/mental/guide/info-mental-b.htm (Last visited: November 26, 2012).

Meeting of Minds, available at http://www.medobserver.com/article.php?ArticleID=440 (last visited May 17, 2012).

Mental Retardation, http://emedicine.medscape.com/article/1180709-overview (Last visited: January 14, 2013).

Psychopharmacology From Wikipedia, the free encyclopedia at http://en.wikipedia.org/wiki/Psychopharmacology (last visited May 17, 2012).

Psychopharmacology, available at http://www.sciencedaily.com/articles/p/psychopharmacology.htm (Last visited: November 26, 2012).

Sol Jose Vanzi, Mental Health Problems: Psychiatrists Tap Social Science, available at http://www.newsflash.org/2004/02/si/si001922.htm (last visited October 25, 2004).

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