COVID-19 policies and legal issues

Our corporate partner, MDA National, prepared this information on 23 December 2021 for AMA Queensland members. Please note practices should seek their own independent legal advice.

Uncertainty around legal issues relating to COVID-19

The COVID-19 pandemic has presented a host of ethical and legal issues that have yet to be determined by appropriate legal authorities. Many questions about the application of policies relating to COVID-19 are unable to be answered with absolute certainty due to this. 

It is also noteworthy that the rapidly changing nature of Government guidelines/advice, Public Health Directions and legislation relating to the pandemic means legal advice can become non-current quickly, which is problematic for organisations who seek to provide absolute guidance to their Members or the public. 

Many issues will depend on the facts of individual cases as they present and the overall reasonableness of particular policies or actions that are aimed to provide safety from the COVID-19 virus. 

Where possible, practices should seek their own independent legal advice based on their circumstances and should ensure that any policies are clearly and openly communicated to patients ahead of time. 

Unvaccinated and partially vaccinated patients

In respect of whether a doctor/practice can refuse to see unvaccinated or partially vaccinated patients, the answer is quite complex.

Josh Frydenberg made some comments in the media indicating that “businesses across the nation should be free to deny entry to people based on their vaccination status”. This comment fails to recognise that not all businesses are the same and some industries have regulators (such as the Medical Board of Australia and the Office of the Health Ombudsman in Queensland) who also have a say in these issues.

In general, doctors are not required to treat any patient unless it is an emergency, but the reason for declining treatment cannot be discriminatory. In addition, medical practitioners must take all reasonable steps to ensure they do not prejudice or deny patients access to medical care.

If a person is refused access to a medical service because they are not fully vaccinated, but they have not received a vaccination for a legitimate medical reason and have a valid medical exemption, an argument could be made that they have been discriminated against on the basis of a disability. We are not aware of any cases where this has resulted in a claim against a business or individual practitioner, however it is inevitable that this situation will occur at some point in the near future.

Due to the above, we consider a policy that only patients who are fully vaccinated can attend a medical practice would expose that practice to liability under discrimination and human rights laws. It is important that any policy refusing access to unvaccinated or partially vaccinated patients makes exceptions for the following.

1. Individuals who are legally unable to be vaccinated.
2. Individuals who have a valid medical exemption for vaccination against COVID-19. 

For example, at the time of preparing this article, children aged under 12 years are not eligible to be vaccinated against COVID-19, so a policy requiring all patients to be fully vaccinated would exclude all children under the age of 12. 

It is also noteworthy that the Queensland Public Health and Social Measures linked to vaccination status Direction (the Direction) in effect from 17 December 2021 specifically state that unvaccinated people will still be able to access essential services. The Direction also states that people under the age of 16 are also able to access all essential or non-essential services, regardless of their vaccination status.

Therefore, even if the above exceptions are incorporated into a policy excluding patients who are not fully vaccinated, if a practice implements a policy to only treat fully vaccinated patients, there is a risk of a complaint to Ahpra, State based Health Care Complaints bodies (such as the Office of the Health Ombudsman in Queensland) or the Equal Opportunity Commission (on the grounds of an alleged human rights violation).

Whether the way in which a practice manages the risk of COVID-19 is reasonable depends on a variety of factors including patient demographics, geographic location, speciality, practice resources and the different legal requirements of each State. As stated above, the situation can also change based on changes in Government advice, legislation or Public Health Directions.

A recent article in Australian Doctor quoted Dr Karen Price (RACGP president) as saying that “practices should tread extremely carefully and consider whether other measures, such as robust infection control processes and the spacing out of waiting areas, are sufficient to keep patients and staff safe”. 

We recommend that other measures are used to mitigate the risk that patients who are not fully vaccinated may pose to staff or other patients. Taking reasonable steps to ensure that unvaccinated or partially vaccinated patients can access medical care safely could include telehealth consultations at first instance, and if a face-to-face consultation is required having a dedicated room and appointment times, requiring proof of recent negative COVID-19 test, or referral to another practitioner who is able to offer face-to-face consultations.

A practice can ask for proof of vaccination to inform their management of a patient’s attendance at their practice. If this is recorded, it is important that the information is recorded securely. For a practice, the safest option would likely be to record the information in the patient’s medical record, as this is already compliant with obligations regarding the storage of sensitive health information under the Privacy Act 1988 (Cth), Information Privacy Act 2009 (Qld) and Public Records Act 2002 (Qld). 

It is also important to note that vaccinated patients can still contract COVID-19 and pass it on to others, so banning unvaccinated patients does not completely remove the risk to your doctors, staff, and other patients. While our understanding is that vaccination reduces the transmissibility of the COVID-19 virus, there is a lack of clear evidence regarding the extent of this reduction. This may be more so with the rise of the Omicron variant.

Ahpra is investigating a number of complaints relating to a multitude of COVID issues, and we are waiting to see the outcomes from these cases. At this stage, the Medical Board’s position on medical practitioners refusing to see patients who are not fully vaccinated is not clear. We consider it is likely, however, that disciplinary action would be taken if the Medical Board considered the refusal to see the patient was unreasonable and therefore breached the Code of Conduct. 

Kennedys have prepared an advice for the Victorian AMA considering the implications of a refusal to provide care for patients who are not fully vaccinated in relation to the Medical Board of Australia’s Code of Conduct, which can be accessed here.

The information/articles below may also provide some further guidance.

1. Australian Human Rights Commission – What is the Commission’s view on limiting human rights during COVID-19?
2. AMA Victoria – Communications and Advocacy update: 9 December 2021 (see comments on private practice and unvaccinated patients).
3. Medical Republic – Can you refuse the unjabbed patient?
4. InSight – Before you judge unvaccinated patients, read this. 
5. Sydney Morning Herald – Doctors’ union says medics will treat unvaccinated COVID patients.

Can we require patients to wear masks?

As of  Wednesday 22 December 2021, masks must be worn at all times by healthcare workers and visitors in hospitals, healthcare settings, residential aged care facilities, disability accommodations, 

Read more on this mandatory mask direction here.

However, there are some exceptions including:

• children under 12
• travelling in a private vehicle, either alone or with only members of the person’s household
• a person eating, drinking or taking medicine
• where visibility of the mouth is essential
• where a mask needs to be removed to clearly communicate
• a person with a particular medical condition or disability
• performing work where clear visibility of the mouth is required, e.g. a speech therapist in a hospital or healthcare setting.
• a resident of a residential aged care facility or a shared disability accommodation service (This is subject to any policies or requirements of a facility or service)
• a person undergoing medical treatment
• if a person is asked to remove a face mask for identity purposes
• if wearing a mask creates a risk to a person’s health and safety
• in an emergency or when required by law
• in any circumstances when it’s not safe to wear a mask.

A healthcare facility or setting is any premises where healthcare is provided. Examples include:

• public hospitals, public health clinics, ambulance services, patient transport services, and other health services
• private health facilities, such as private hospitals or day procedure centres or specialist outpatient services
• residential aged care facilities
• shared disability accommodation services
• private provider facilities, such as general practitioners, private nurse offices and allied health consulting offices, pharmacies, optometrists, dental surgeries and private pathology centres
• not for profit health organisations providing public healthcare under a service agreement with any State or Commonwealth agency, including an Aboriginal and Torres Strait Islander Community Controlled Health Service
• Non-Government Organisations (NGOs) delivering healthcare services, for example Alcohol and other Drugs residential rehabilitation and treatment services, hospital and other public healthcare services on a Hospital and Health Service campus, such as integrated mental health Step-Up Step-Down models
• education settings within a healthcare setting
• outreach services in other health settings provided by public, private, residential aged care or shared disability accommodation facilities, including in-home healthcare services
• Australian Red Cross Lifeblood collection centres
• in home delivery of disability support services
• aged care services funded by the Australian Government and delivered in the home
• school based healthcare, including in special schools
• healthcare services provided in other settings such as gyms
• in homes where disability support services in the home are delivered
• aged care services funded by the Australian Government and delivered to a client or patient in their home.

Read more on this requirements for workers in healthcare settings direction here.

The RACGP also has a useful COVID safety plan which includes suggestions to mitigate the risk during the pandemic, which can be accessed here.

Can we request family and carers of patients for proof of vaccination?

You can ask the family and carers of patients for proof of vaccination prior to allowing them to access your business, however all parties should be informed of this requirement prior to their presentation at the practice. 

This is complicated by the Queensland Government guidelines clearly stating that “no child or young person or their parent, carer or guardian will be denied access to care or treatment based on their vaccination status”. Under the Directions, there are some additional requirements for healthcare settings in Queensland for patients who are under the age of 18 who are accompanied by an unvaccinated parent/guardian including that: 

• only one unvaccinated parent, carer or guardian can attend;
• the unvaccinated parent/guardian must wear a mask;
• the unvaccinated parent/guardian must limit their movements; and
• they unvaccinated parent/guardian must have a COVID-19 test within 24 hours of entering a hospital. 

However, there may be situations that require special consideration and each situation should be considered on a case-by-case basis. 

As with policies relating to patients who are not fully vaccinated, there should be exceptions for family/carers who are unable to be fully vaccinated due to a legitimate medical reason and who have a valid exemption relating to the same. 

Can we request a patient to complete a PCR test before coming in for an appointment?

You can require patients to complete a PCR test prior to coming into the practice for an appointment. 

It is important to note that PCR tests are free for people with COVID-19 symptoms, however can cost around $150 at a private pathology clinic. As such, a requirement to present a negative PCR test will be a significant barrier to medical care for many individuals.

Where people are unable to complete a PCR test prior to attending for an appointment, alternatives should be considered to ensure they can still access medical care. This may be offering telehealth consultations or referring the patient to another provider who does not require a negative test to be presented prior to their appointment. 

You may also consider accepting a patient providing a negative Rapid Antigen Test (RAT). While RAT is less accurate than PCR testing, it is significantly cheaper, more accessible and may reduce the barrier for individuals who cannot afford PCR testing.

Will practices be able to refuse entry to patients that don’t comply with the check in app?

The Direction requires that:

“person who owns, controls or operates a business, activity or undertaking in Schedule 1 must make all reasonable efforts to electronically collect contact information about all visitors and staff at the time of entry” 

by either requesting each visit/staff member checks in using the Check In Qld app or registering them through the Business Profile mode of the Check In Qld app. 

The only exceptions to the above requirement are:

• if the person is or appears to be younger than 16 years old and is not accompanied by a parent of adult who can provide information on their behalf;
• the person is or appears to be a primary or secondary school-aged child and is part of a group attending an activity organised by a school, sporting team or community group;
• the person is exercising law enforcement, intelligence, or national security functions on behalf of a government agency;
• the person enters in an emergency or is entering to provide emergency services; or
• it is not reasonable to collect contact information due to a risk to a person’s safety.

There is an obligation for patients and staff to provide their details either via the Check In Qld app or by providing their contact details directly to the business.

Failing to collect or provide contact details as above is an offence under the Direction.

As such, practices can ask patients to use the Check In App or provide their contact details for registration through the Check In App Business Profile at a later date. If a patient refuses to check in or provide their details, and does not meet one of the above exceptions, then they can be asked to leave the practice. 

Note about aggressive patients/refusal to comply with Direction

There is an example in the Direction in relation to businesses who are required to ask for a visitor’s “proof of COVID-19 vaccination” that states: 

“A business owner has prominently displayed the vaccination requirements at the point of entry to the business, and instructs wait staff to ask to sight proof of COVID-19 vaccination before taking orders. In circumstances where a visitor becomes aggressive towards the wait staff, the owner is not required to enforce compliance but can reasonably refuse to serve the visitor and treat them in the same way as other aggressive visitors.”

While this specifically relates to requests for confirmation of vaccination, we consider that the example can be extended to other situations where patients refuse to comply with COVID-19 policies. If a patient refuses to follow policies or provide information about their vaccination status or evidence of a claimed exemption and becomes aggressive, practices have the right to refuse them access due to concerns about safety. 

In these circumstances, aggressive patients should be handled as they would in any other situation and asked to leave the premises, with a report to Police if the practice feels it is warranted.