North Carolina Psychological Association
Statement Regarding Proposed Medical Ethics Defense Legislation and
its Potential Impact on Public Welfare
April 2023

Compelling Interest and Public Welfare

Psychology and other mental health professionals have a compelling public interest in serving the needs of an increasingly diverse client population. Jurisdictions regulate mental health practice for the public good and they therefore have a compelling interest to ensure that mental health professionals provide effective and compassionate care to members of the public who seek their services.

NCPA ASSERTS THAT:

• Psychologists and other mental health professionals fulfill a vital public good, and more broadly, that North Carolina has a compelling interest in ensuring that well-trained, nonjudgmental, openminded mental health professionals do not inflict harm on clients by rejecting core aspects of their identities.
• There is an important public good that is served by ensuring that psychologists and other mental health professionals are willing to provide effective and compassionate care to a diverse range of clients, even when such care may create some tension with personal beliefs.

 “Conscience protections apply to health care providers who refuse on religious or moral grounds to perform or assist in the performance of certain health care services.” (www.hhs.gov, 2023).

In this session of the General Assembly, bills have been introduced that state the following:

“(a) A medical practitioner, health care institution, or health care payer shall have the right not to participate in or pay for any health care service which violates his, her, or its conscience.” (SB 641)

SB 641 and HB 819, both short-titled the Medical Ethics Defense (MED) Act, allow for the following additional protections:

“(b) No medical practitioner, health care institution, or health care payer shall be civilly, criminally, or administratively liable for exercising his, her, or its right of conscience not to participate in or pay for a health care service. No health care institution shall be civilly, criminally, or administratively liable for the exercise of conscience rights not to participate in a health care service by a medical practitioner employed, contracted, or granted admitting privileges by the health care institution.

(c) It shall be unlawful for any person to discriminate against any medical practitioner, health care institution, or health care payer that refuses to participate in or pay for a health care service on the basis of conscience under this Article.”

To more fully illuminate the potential impact of the proposed legislation, please consider the following:

Federal Law

The language of SB 641 and HB 819 does not limit its scope to the performance of or assisting in the performance of “certain health care services” as referred to in federally protected conscience protections, which are generally narrowly crafted and limited to specific procedures. The proposed bills:

• Undermines psychologists’ ethical obligation to provide care for a wide range of people in a wide range of circumstances; and
• Potentially lays the groundwork for NC health care providers, institutions and/or payors to refuse to provide or pay for care and or treatment in a wide variety of currently unspecified situations, not only those currently protected by federal law.

The US Department of Health and Human Services (DHHS) statement related to conscience religious nondiscrimination states the following:

“Conscience protections apply to health care providers who refuse on religious or moral grounds to perform or assist in the performance of certain health care services. Federal statutes protect health care provider conscience rights and prohibit recipients of certain federal funds from discriminating against health care providers who refuse to participate in certain services based on moral objections or religious beliefs.”
https://www.hhs.gov/conscience/conscience-protections/index.html#federal

In general, these conscience protections refer to specific procedures such as abortion,  sterilization, and assisted suicide. For reference, see the US DHHS Office for Civil Rights (OCR) Fact Sheet.

State Law

The language of SB 641 and HB 819 seems at odds with the NC State Law which expressly incorporates the APA Ethics Code.

NC General Statutes Psychology Practice Act

“90-270.135. Title; purpose.

(a) This Article shall be known and may be cited as the “Psychology Practice Act.”

(b) The practice of psychology in North Carolina is hereby declared to affect the public health, safety, and welfare, and to be subject to regulation to protect the public from the practice of psychology by unqualified persons and from unprofessional conduct by persons licensed to practice psychology.”

 The American Psychological Association (APA) Ethical Principles of Psychologists and Code of Conduct (“The Ethics Code”), is incorporated into the NC Psychology Practice Act, and thus is state law. The Ethics Code includes the principles of Beneficence and Nonmaleficence, Fidelity and Responsibility, Integrity, Justice, and Respect for People’s Rights and Dignity. More specifically, The Ethics Code states:

General Principles

“Principle E: Respect for People's Rights and Dignity
Psychologists respect the dignity and worth of all people, and the rights of individuals to privacy, confidentiality, and self-determination… Psychologists are aware of and respect

cultural, individual, and role differences, including those based on age, gender, gender identity, race, ethnicity, culture, national origin, religion, sexual orientation, disability, language, and socioeconomic status, and consider these factors when working with members of such groups. Psychologists try to eliminate the effect on their work of biases based on those factors, and they do not knowingly participate in or condone activities of others based upon such prejudices.”

“Section 3 Human Relations

3.01 Unfair Discrimination
In their work-related activities, psychologists do not engage in unfair discrimination based onage, gender, gender identity, race, ethnicity, culture, national origin, religion, sexual orientation, disability, socioeconomic status, or any basis proscribed by law.”

Provider Participation Agreements

 The language of SB 641 and HB 819 does not seem to incorporate key public protection concepts such as compelling interest and concern for public welfare and seems in stark contrast to the non-discrimination language included in both current NC state law and provider participation agreements.

 Psychologists and other mental health professionals are required to sign Provider Participation Agreements to be credentialed with insurance carriers. Many of these agreements contain clauses regarding non-discrimination. For example, in the 2023 Network Participation Agreement for the NC State Health Plan, it reads:

 “2.1.4.3. Non-Discrimination. You agree not to discriminate against State Health Plan Members on the basis of race, color, ethnicity, national origin, sexual orientation, gender, sex, age, religion, marital status, citizenship, disability, health status, health insurance coverage, mental health status, source of payment, veteran status, or any other basis deemed unlawful under federal, state, or local law.” (page 7)

https://www.shpnc.org/nc-state-health-plan-network

NCPA volunteers Drs. Mary Evers, Cat Forneris, Dale Mann, Cris Saffo, Dave Spriggs, Dick Rumer, and Erica Wise compiled information about the proposed medical ethics and the potential impact on the public welfare.