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  • COVID-19: General: FAQs

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  • COVID-19: Face masks/coverings

    • As general rule, a doctor does not have to treat a patient (even in an emergency) if there is a risk to the doctor’s health and safety or the health and safety of other patients under the doctor’s care (see clause 3.5 of Good medical practice: a code of conduct for doctors in Australia). We recommend that you assess the nature of the risk and only refuse treatment if it is reasonably necessary to ensure health and safety.

      In NSW, the situation is slightly different because under the Health Practitioner Regulation National Law (NSW) it is unsatisfactory professional conduct to refuse or fail to attend a person in need of urgent attention when requested to do so. The exception is when the practitioner has taken all reasonable steps to ensure that another medical practitioner attends instead within a reasonable time.

      You should also consider the following guidance from Ahpra: Facilitating access to care in a COVID-19 environment: Guidance for health practitioners.

    • The public health directions in most states and territories no longer mandate face coverings.

      However, a practice and/or a doctor working in a practice can still require workers, patients and other persons to wear a face covering if they have done a risk assessment and decided that mandatory face coverings are a necessary work health and safety measure.

      Work health and safety laws

      Work health and safety laws require a person conducting a business or undertaking (PCBU) to take reasonable steps to ensure the health and safety of workers, patients and others at the workplace by eliminating or minimising risks, including the risks of COVID.

      A medical practice is a PCBU.

      In addition, each doctor running his or her own medical business at the medical practice (via a contractor agreement, services agreement or other arrangement) is a PCBU.

      Each PCBU must undertake a risk assessment (in consultation with its workers) to determine what control measures are necessary to ensure health and safety in the workplace. Our factsheet about risk assessment is at Avant - Managing COVID-19 health and safety risks in medical practice.

      Workers, patients and other persons can be required to wear a face covering in a medical practice if the risk assessment identifies that face coverings are a necessary measure to ensure health and safety, unless doing so would amount to unlawful discrimination.

      Each PCBU must consult, cooperate and co-ordinate activities with other PCBUs. Practically, this means that the practice and each doctor working at the practice must consult with each other and work together to ensure health and safety. If an issue cannot be resolved between the parties, a party can ask a work health and safety inspector to attend the workplace to assist in resolving the issue.

      Discrimination

      State and federal legislation prohibits discrimination on the basis of attributes including disability. Many workers, patients and others are unable to wear a face covering due to a physical or mental health issue.

      It is unlawful to discriminate against a person on the basis of the person’s disability by refusing them medical treatment or access to practice premises unless:

      • the discrimination is reasonably necessary to ensure health and safety;
      • it is not possible to make reasonable adjustments without imposing unjustifiable hardship on the party.
       

      We have assisted many practices to defend complaints of disability discrimination in response to face covering requirements. We suggest the following steps to minimise the risk of a successful discrimination complaint.

      • You should have a written policy about the requirement for workers, patients and others to wear face coverings within your COVIDSafe Plan.
      • The policy should include alternatives for those persons who are unable to wear a face covering. By way of example:
        • Workers may be able to work in an isolated part of the practice or from home.
        • Patients may be able to see their doctor via telehealth or at a time when the practice is not busy (such as the start or end of the day) or in an isolated area of the practice.
      • You should ensure that reception staff understand the policy and how to communicate with patients and others about the face coverings.
      • You should have an escalation process for workers, patients and others who object to the face covering requirement. In most cases, this will be the practice manager.
       

      Further information

      Facilitating access to care in a COVID-19 environment: Guidance for health practitioners| Ahpra

      Face masks and federal discrimination law | Australian Human Rights Commission

      Coronavirus and Australian workplace laws | Fair Work Ombudsman

      RACGP - Coronavirus (COVID-19) information for GPs

      AMA (NSW) urges the public to continue wearing masks in healthcare settings

       

    • We have identified three scenarios you may be faced with when a patient refuses to wear a face mask/covering and provide some recommendations on how to manage these situations.

      Scenario 1: Your patient says: “I object to wearing a face mask/covering.” or “I do not have to wear a face mask/covering because there is no public health direction.”

      If a patient has provided no reason for refusing to wear a face mask/covering, you can lawfully refuse the patient entry to your practice.

      We recommend that you consider other ways of providing a medical service to the patient (for example, via telehealth) to minimise the risk of a complaint.

      Scenario 2: Your patient says: “I am not required to wear a face mask/covering because I have an exemption.”

      If your practice has undertaken a risk assessment and determined that face coverings are necessary to ensure health and safety, you can ask the patient why they are exempt from wearing a mask.

      If they do not provide a reason, you can lawfully refuse the patient entry to your practice.

      We recommend that you consider other ways of providing a medical service to the patient (for example, via telehealth) to minimise the risk of a complaint.

      For example, you can say to the patient:

      It is my role to comply with work health and safety laws and to ensure the health and safety of staff and patients in this practice.

      It is also my role to ensure that patients are not discriminated against on the ground of certain attributes. You have not disclosed to me that you have an attribute, so I am not discriminating against you on the ground of an attribute.

      The Privacy Act does not prevent me from asking you why you are exempt from wearing a face mask/covering. You are not required to provide personal information in response to my query but if you do not disclose to me that you have an attribute, I will not be discriminating against you on the basis of an attribute.

      Scenario 3: Your patient says: “I am not required to wear a face mask/covering because I have a medical condition/other attribute.”

      The patient could allege that the practice has discriminated against them on the ground of their medical condition or another attribute if the practice refuses the patient entry to the practice.

      As a first step, you should explain to the patient why the practice requires all patients to wear a face mask/covering and try to negotiate an alternative to the patient being seen face to face in the practice (for example, appointment via telehealth, treatment in the car park or treatment at the practice after hours).

      If the patient continues to insist that they must be seen face to face in your practice but your risk assessment has determined that would be a significant risk to health and safety, you should consider whether there are any other ways you could safely provide treatment (for example, final appointment of the day when the practice is otherwise empty). If not, you can refer the patient to other local clinics for treatment.

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    COVID-19: Telehealth

    • It remains a legislative requirement in the permanent telehealth items that GPs and other medical practitioners working in general practice can only perform a Medicare-eligible video or telephone service where they have an ‘existing relationship’ with the patient, unless a specific exemption applies.

      Private billing arrangements that do not attract Medicare rebates can still be made for telehealth consultations with appropriate informed financial consent.

      An existing relationship means the medical practitioner performing the service:

      • has provided at least one face-to-face service to the patient in the 12 months preceding the telehealth attendance; or
      • is located at a medical practice where the patient has had at least one face-to-face service arranged by that practice in the 12 months preceding the telehealth attendance (including services performed by another doctor located at the practice, or a service performed by another health professional located at the practice, such as a practice nurse or Aboriginal and Torres Strait Islander health worker); or
      • is a participant in the Approved Medical Deputising Service program, and the Approved Medical Deputising Service provider employing the medical practitioner has a formal agreement with a medical practice that has provided at least one face-to-face service to the patient in the 12 months preceding the telehealth attendance.

      The existing relationship requirement does not apply to:

      • children under the age of 12 months;
      • people who are homeless;
      • patients living in a COVID impacted area;
      • patients receiving an urgent after-hours (unsociable hours) service;
      • patients of medical practitioners at an Aboriginal Medical Service or an Aboriginal Community Controlled Health Service;
      • people in mandatory isolation because of a COVID-related state or territory public health order, or in mandatory COVID quarantine because of a state or territory public health order. Close contacts are no longer automatically exempt from existing relationship requirements because all states and territories have now removed the requirement for mandatory isolation for asymptomatic close contacts;
      • people in a flood affected area declared by their state or territory government. Medicare have advised this will soon be expanded to include natural disaster areas generally;
      • patients accessing specific MBS items for:

        • blood borne viruses, sexual or reproductive health consultations;
        • pregnancy counselling services;
        • some mental health services; and
        • nicotine and smoking cessation counselling.
         

      A patient’s participation in a previous telehealth consultation does not constitute a face-to-face service for the purposes of ongoing telehealth eligibility.

      There is no exemption for circumstances where a general practitioner is isolating or in quarantine themselves.

      You should confirm that patients have received an eligible face-to-face attendance in the preceding 12 months, or meet one or more of the relevant exemption criteria for the service, prior to providing a telehealth attendance. Failure to meet the established relationship requirement may result in incorrect claiming.

      Some common scenarios* include:

      Q: You saw patient X at practice A 10 months ago. Can you provide a telehealth consultation for them from practice B?

      A: Yes, as patient X has had a face-to-face consultation with you in the past 12 months.

      Q: You saw patient X in June 2021 at your practice and you saw them again in January 2022 via telehealth. It is now July 2022 and patient X wants to book a telehealth consultation. Can you provide one?

      A: As patient X has NOT had a face-to-face consultation with you in the past 12 months, they will need to see you again in person before you can bill Medicare for further telehealth consultations. The patient can choose to pay privately for a telehealth consultation in this situation, but you must advise them in advance that they will not receive a Medicare rebate. (This does not apply if there is an exemption as outlined above.)

      Q: Patient X attended practice A 10 months ago and saw another GP, but you weren’t working at practice A at that time. Can you now provide patient X with a telehealth consultation?

      A: Yes, as patient X has had a face-to-face consultation with a GP at practice A within the last 12 months.

      Q: You have had regular telehealth consultations with patient X over the past four months since the pandemic started, developing a good clinical relationship, but you have not yet seen them in person and they have never attended your practice in person in the past. Can you continue to provide telehealth consultations?

      A: No, patient X needs to see you in person before you can continue to provide and bill Medicare for any telehealth consultations. Alternatively, patient X will need to arrange a telehealth consultation with a doctor at their former practice if they attended there in person within the last 12 months. (This does not apply if there is an exemption as outlined above.)

      Q: You saw patient X in her home/nursing home within the last year but otherwise we have had telehealth consultations due to her vulnerability to COVID. Can you continue with the telehealth consultations?

      A: Yes, you have had a personal attendance with patient X in the past 12 months.

      Q: Patient X is a new patient. She is unwell and doesn’t want to come into the clinic for fear of contracting COVID as her husband is immunocompromised. You are unable to do a home visit. Can you see her via a telehealth consultation given her anxiety and medical condition?

      A: These reasons do not fall within the exemptions listed above. The patient will need to come and see you face-to-face or attend the hospital or contact her old practice to see if they will do a telehealth consultation if she can’t get in to see you. You have the option of doing a telehealth consultation and privately billing the patient with informed financial consent.

      *These scenarios are based on the assumption that the consultations are not covered by the telehealth items applicable to GPs prior to COVID.

      Further information

      MBS changes:

       

    • Where telehealth and telephone services are bulk billed, no additional charge may be rendered for the service (regardless of how the charge is described).

      Health practitioners providing telehealth services are not required to bulk-bill their patients.

      Bulk billed GP and OMP telehealth services are eligible for incentive payments when provided to Commonwealth concession card holders and children under 16 years of age.

      Where the services are not bulk billed, an additional charge may be rendered subject to obtaining informed financial consent from the patient.

    • Yes.

      There are three ways you can bill your patients when using telehealth services:

      1. Bulk billing.
      2. Private billing where the patient receives a Medicare rebate and pays an out of pocket amount.
      3. Private billing outside the Medicare system.

      For patients who are not being bulk billed, you can bill patients in the usual way, but you need informed financial consent from your patients before providing the service.

      You should therefore provide your patients with:

      • Details of your fees, including any out-of-pocket costs.
      • Details of the amount of any Medicare rebate.
       

      Some practices are choosing to privately bill patients outside the Medicare system, who may otherwise be entitled to be bulk billed under the MBS COVID-19 telehealth item numbers. A doctor and patient can agree that there will be no Medicare benefit for the service (and the doctor will issue a receipt which cannot be used by the patient to claim a Medicare benefit).

    • If you bill privately, patients need to know details of your fees, including any out of pocket expenses and what Medicare rebate, if any, they will receive.

      Informed financial consent can be given verbally and documented in the medical records or confirmed in an email (see below for a suggested email agreement).

      If you are privately billing the whole amount of your fees (for example because the patient is not Medicare-eligible, or you decide to privately bill outside the Medicare system) we suggest you indicate on your receipt issued to the patient that there is no Medicare benefit payable for the service.

      Example Email Agreement – Privately Billed Telehealth Consultation

      Dear,

       

      Details of the telehealth consultation to be privately billed and paid:

       

      Date and time of consultation: … 2020 … am

       

      Patient name: …

       

      Provider name: …

       

      Cost of consultation: …

       

      Amount of Medicare rebate [if any]: …

       

      Agreement

      If you (the patient) agree to this payment for the telehealth consultation please reply to this email including the following wording:

       

      Yes, I agree to pay for the telehealth consultation on …………… 2020.

      [If a Medicare rebate is payable]

      I acknowledge that I will have to pay out of pocket costs of [$X]and that I will receive a Medicare rebate of [$X]

       

      [if no Medicare rebate is payable]

      I acknowledge that there is no Medicare rebate available for this consultation.

       

       

      your (the patient's) name or the name of parent or guardian (where a child is the patient and unable to sign).

       

      Regards,

      Dr …

       

      Privacy note: Your personal information is protected by law, including the Privacy Act 1988. You can get more information about the way in which we manage your personal information by reviewing our privacy policy

    • The existing prescribed pattern of practice (80/20 rule) applies to all GP consultation types from 1 July 2022. This means any doctor who provides more than a combined 80 services by face-to-face, video or telephone on 20 or more days in a 12-month period will be referred to the Professional Services Review (PSR).

      Vaccine suitability assessments will not count towards the 80 services.

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    COVID-19: Medical certificates

    • The coronavirus strain (COVID-19) should be recorded on the medical cause of death certificate where the disease caused, or is assumed to have caused, or contributed to death. You can find further information here.

      The CDNA guidelines provide further information about the definition of a COVID-19 death.

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    COVID-19: Practice management

    • Work health and safety laws require medical practices to implement control measures to eliminate or minimise the risks of COVID-19 and ensure the health and safety of their workers, patients and others at the workplace.

      This involves undertaking a risk assessment in conjunction with your workers and determining the control measures that are necessary based on that risk assessment. Avant’s factsheet: Managing COVID-19 health and safety risks in medical practice explains the risk assessment process.

      If your risk assessment identifies that taking a person’s temperature is a reasonably necessary measure to ensure health and safety, you can implement a temperature taking policy.

      You can only take a person’s temperature with their consent.

      If testing is used for screening for access to the practice, you should have a protocol about temperature testing which includes what will happen if a person’s temperature is above the required temperature or a person refuses to have their temperature taken.

      You should consider whether employees with a high temperature will be paid sick leave.

      You also need to ensure compliance with the privacy laws in respect of information about a person’s temperature.

    • We have set out the legal position below, but it is up to each practice to determine how best to manage the situations that arise with their staff.

      Any worker who can work from home during a self-isolation period should do so and should continue to be paid as usual.

      If a worker is not able to work from home (e.g. due to the nature of their role), the employer will need to consider how to pay the worker, taking into account the legal position below.

      1. The employee is sick or is required to care for an immediate family member who is sick

      If the employee has contracted COVID or is otherwise sick, the employee is entitled to paid personal/carers leave. The employee can take other forms of paid leave if they run out of paid personal/carers leave.

      If an employee becomes sick while on annual leave (including from contracting COVID), the employee is entitled to paid personal/carers leave.

      If an employee is required to provide care or support to an immediate family member or a member of the employee’s household because that person has contracted COVID or is required to isolate, the employee will be entitled to paid carer’s leave.

      2. The employee is required to self-isolate by the employer

      Given the unique circumstances of COVID, a practice can require an employee to self-isolate if the practice is concerned that the employee may be a COVID risk. However, the practice must pay the employee their usual wages for the relevant period without deduction from leave entitlements.

      3. Government benefits

      Government benefits may be available to employees who are unable to work and not entitled to payment from their employer. 

    • The Department of Health has provided national guidance for practices about how to respond to a COVID-19 exposure in the practice.

      Some states and territories have also published guidance:

       

    • The Office of the Australian Information Commissioner has stated that yes, you may inform staff that a colleague or visitor has or may have contracted COVID-19 but you should only use or disclose personal information that is reasonably necessary to prevent or manage COVID-19 in the workplace.

      For example, depending on the circumstances, it may not be necessary to reveal the name of an individual in order to prevent or manage COVID-19, or the disclosure of the name of the individual may be restricted to a limited number of people on a ‘need-to-know basis’. Whether disclosure is necessary should be informed by advice from the public health unit.

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    COVID-19: Employment

    • You should check the award and/or enterprise agreement that applies to your employment as many include requirements about redeployment or alternate duties (for example, clause 22 of the AMA Victoria - Victorian Public Health Sector - Doctors in Training Enterprise Agreement 2018-2021).

      Otherwise, as an employee, you are required to comply with the lawful and reasonable directions of your employer. If a direction is not lawful and reasonable, you are not required to comply with it.

      Lawful: A direction is lawful if you can comply with it without breaching any laws. This would include the laws regarding your registration and professional indemnity insurance.

      Reasonable: There is no single test to determine whether a direction is reasonable. The reasonableness of a direction will depend on a range of factors. In the case of a direction to work in a role outside your chosen specialty, you should consider issues such as:

      • Do you have the relevant (and current) skills and experience needed to work in the role?
      • Will appropriate supervision be provided?
      • Will you be able to ensure patient safety in the role?
      • Can you perform the role safely, particularly if you are a vulnerable healthcare worker? For example, if you are asked to work in a role where you will be treating COVID-19 patients and are concerned about the risks to yourself due to a medical condition or pregnancy, you should discuss your concerns with your supervisor.
      • Will the hospital provide the appropriate resources (including PPE) for you to work safely in the role?
      • Will the hospital provide the relevant training you need to be able to work in the role?
      • Will you be indemnified for your work in the role?

      If the answer to any of these questions is “no”, the requirement for you to work in the role may be unreasonable.

      If you are in training and concerned about being redeployed to a new role, you should speak to your Training Supervisor in the first instance, or your training college. It is important to remember that in your new role, you will need to have supervision in areas that you cannot work independently, and access to senior advice as you would in your normal scope of practice.

      If you do change your scope of practice, you should contact Avant to ensure you continue to have appropriate indemnity insurance, even if you are indemnified for civil claims by your employer.

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    COVID-19: Patient testing and treatment

    • The Therapeutic Goods Administration (TGA) has granted provisional approval for two oral COVID-19 treatments, for use in adults who do not require initiation of oxygen, and who are at increased risk of progression to hospitalisation or death. These treatments are: molnupiravir (Lagevrio) and nirmatrelvir + ritonavir (Paxlovid).

      Antiviral medications are not approved for use in children or adolescents under 18 years.

      These are suggested steps to take when considering prescribing these medications:

      Step 1: Ensure it is indicated for use

      The medications need to be prescribed in accordance with the clinical criteria specified in the drug guidance:


      Step 2: Ensure no contraindications exist and warn the patient of risks and precautions

      It is essential that you are familiar with the contraindications for each medication you are considering prescribing. Depending on the medication, this may include pregnancy, breastfeeding, other medications and co-morbidities.

      You should have a thorough discussion of the risks, precautions and benefits (including the possibility of no benefit) from the medication, along with precautions when the medication has been prescribed, and document that discussion. 
       
      You should ensure you warn patients where there are risks associated with falling pregnant whilst taking the medications, and document this in the clinical record. For example, Lagevrio is currently a category D medication in pregnancy. In particular, document advice given to your patients regarding the recommendations for contraception both during and after treatment. For example, the current recommendation is that males use an adequate form of contraception for three months after treatment with Lagevrio.

      Step 3a: Prescribing for use from the NMS

      Medication from the national medical stockpile (NMS) has been supplied to states and territories and distributed to entities, including residential aged care facilities and Aboriginal Community Controlled Health Organisations.

      If you have access to medication from the NMS, you should ensure you follow any criteria for prescribing that has been provided with the supply of medication.

      For example, in NSW there is a “model of care” document for the use of the medications: Model of care for the use of anti-SARS-CoV-2 monoclonal antibodies and antivirals - Communities of practice (nsw.gov.au).

      If your state or territory has not published criteria, it is recommended that you follow the guidance of:

      Step 3b: Prescribing for dispensing by community pharmacies

      Lageviro and Paxlovid are available as Pharmaceutical Benefits Scheme (PBS) streamlined authority medications. The PBS has published information:

      It is important your patient fits the stipulated PBS authority criteria, and this is recorded in your clinical record.

      If your patient does not fit the PBS authority criteria, you may be asked to provide a private (non-PBS) prescription. The Department of Health has requested that this does not occur, due to the current limitation of supply of oral antiviral treatments for COVID-19 with prioritisation of patients who may receive the most benefit from the treatments. 

      You should only prescribe according to the TGA provisional approval – which is currently for use in adults who do not require initiation of oxygen, and who are at increased risk of progression to hospitalisation or death.

      You should be familiar with:

       

    • Evidence is emerging about the risks of providing anaesthesia and performing surgery on patients who have recently been infected with COVID-19. When deciding when to perform surgery on patients who have had COVID-19, clinical considerations include:

      • The urgency of the surgery, and the risks of deferring surgery.
      • Whether the surgery could be considered minor or major.
      • The risks of providing anaesthesia and performing surgery in proximity to COVID-19 infection.
      • The nature of their COVID-19 infection, including the severity and duration and type of symptoms.
      • The degree of recovery from the acute infection.
      • Presence of long-COVID.
      • Patient age and comorbidities.
      • Availability of multidisciplinary specialist support.
      • Requirements for thromboprophylaxis.

      To assist your clinical considerations, you should refer to current guidance provided by credible Australian sources, including:

      It is important that you continue to monitor for guidance updates, which may occur as more clinical evidence becomes available.

      In many cases, a detailed discussion will be required with each patient when obtaining informed consent, particularly if surgery is being considered prior to the recommended timeframes. Your discussion with each patient should be documented in their clinical record.

      Many hospitals and day procedure facilities have introduced policies about the timing of surgery for patients who have had COVID-19 infection. You should adhere to these policies.

    • Unfortunately, the answer to this question is complex.

      To help you navigate this process and minimise the chances of running into a legal problem, we suggest you take the following steps.

      Step 1: Check the public health directions in your state or territory

      Your patient should check the specific public health directions in your state or territory to determine whether they can leave isolation or quarantine to attend a medical appointment. If the patient is unable to attend your practice, you should consider whether you can provide health care in another way.

      Step 2: Consider whether refusing treatment to a COVID positive person or a person awaiting a test result is ‘reasonably necessary’ to ensure work health and safety

      Under work health and safety laws, medical practices and medical practitioners must implement control measures to eliminate or minimise the risks of COVID and ensure the health and safety of their workers, patients and others at the workplace.

      A medical practice should undertake a risk assessment in conjunction with workers to determine the appropriate control measures. Avant’s factsheet: Managing COVID-19 health and safety risks in medical practice explains the risk assessment process.

      If the risk assessment identifies that COVID positive patients or those awaiting test results cannot enter your practice, you can direct those patients not to attend the practice (unless doing so would amount to unlawful discrimination). You should consider alternative ways of providing medical treatment to the patient and offer those alternatives to the patient.

      If a patient makes a complaint to a discrimination tribunal or the Medical Board, the practice and the medical practitioner will need to prove that the requirement is ‘reasonably necessary’. The practice should already have measures in place to protect against the risks of COVID. If a discrimination claim is commenced, the practice will need to prove to a court or tribunal why refusing entry to the patient is a necessary measure on top of the measures already in place particularly in circumstances where every person entering the practice could be COVID positive given the extent of community transmission.

      Step 3: Consider whether refusing entry could amount to discrimination

      State and federal legislation prohibits discrimination on the basis of attributes including disability.

      The term “disability” is defined differently in each jurisdiction but generally includes the presence in the body of organisms capable of causing illness or disease. COVID would fall into this definition and therefore a person with COVID would be considered a person with a disability for the purposes of discrimination law. A person also has a disability if the person is presumed to have the disability (i.e. the person has symptoms of COVID but is awaiting a test result).

      It is unlawful for a practice or a medical practitioner to discriminate against a person on the basis of the person’s disability by refusing them medical treatment or access to practice premises unless:

      • the discrimination is reasonably necessary to ensure health and safety
      • the practice is unable to make reasonable adjustments without it imposing unjustifiable hardship on the practice (for example, you should consider whether you can hold an appointment with the patient via telehealth or while wearing full PPE – these might be considered to be “reasonable adjustments”).

      Step 4: Consider whether the situation is an emergency and you have an obligation to provide medical care

      As general rule, a doctor does not have to treat a patient (even in an emergency) if there is a risk to the doctor’s health and safety or the health and safety of other patients under the doctor’s care (see clause 3.5 of Good medical practice: a code of conduct for doctors in Australia).

      In NSW, the situation is slightly different because under the Health Practitioner Regulation National Law (NSW) it is unsatisfactory professional conduct to refuse or fail to attend a person in need of urgent attention when requested to do so. The exception is when the practitioner has taken all reasonable steps to ensure that another medical practitioner attends instead within a reasonable time.

    • Unfortunately, the answer to this question is complex.

      To help you navigate this process and minimise the chances of running into a legal problem, we suggest you take the following steps.

      Step 1: Consider what evidence of a positive COVID test to accept

      Until recently, patients have been able to provide evidence of a negative COVID PCR test by showing a text message or other document from a pathology practice. This will continue.

      A negative COVID result is more difficult to prove if the result has been obtained from a rapid antigen test. You and your practice should consider what evidence to accept of a negative result, such as a statement from the patient, a photograph of the negative test or a statutory declaration signed by the patient.

      Step 2: Ask your patients to comply

      As a starting point, you could simply ask patients to provide a recent negative COVID test result when they attend the practice. Many patients will be happy to comply.

      If a patient refuses to comply, a medical practice can impose a condition of entry on any person entering the practice, provided the practice complies with work health and safety, discrimination and other laws.

      For this reason, you should work through steps 3-6 before you make a final decision to require the patient to provide evidence of a negative COVID test as a condition to entering your practice to receive treatment.

      Step 3: Check the public health directions in your state or territory

      You should check the specific public health directions in your state or territory to determine whether they mandate a negative COVID test before a person is allowed to attend for medical treatment.

      It is important to be aware that:

      • Many public health directions generally allow a person to leave their home for medical treatment and do not require a negative COVID test before a person does so.
      • The health departments in each state and territory can issue specific directions to residents in relation to COVID.
      • The police are responsible for enforcing public health directions, NOT the practice or doctor.

      Step 4: Consider whether a negative COVID test is ‘reasonably necessary’ to ensure work health and safety

      Under work health and safety laws, medical practices and medical practitioners must implement control measures to eliminate or minimise the risks of COVID and ensure the health and safety of their workers, patients and others at the workplace.

      This means that your practice will need to undertake a risk assessment in conjunction with workers to determine the appropriate control measures.  Avant’s factsheet: Managing COVID health and safety risks in medical practice explains the risk assessment process.

      If your risk assessment identifies that requiring patients to provide evidence of a negative COVID test before entering your practice is a ‘reasonably necessary’ measure to ensure health and safety, your practice can direct those patients not to attend the practice (unless doing so would amount to unlawful discrimination). You should consider alternative ways of providing medical treatment to the patient and offer those alternatives to the patient. If a patient makes a complaint to a discrimination tribunal or the Medical Board, you will need to prove that the requirement for a negative COVID test is ‘reasonably necessary’. This could be difficult for the following reasons:

      • A COVID test is a point-in-time test and does not guarantee the patient is COVID free at the time of the appointment.
      • A patient could receive a false negative test result.
      • The practice should already have measures in place to protect against the risks of COVID. If a discrimination claim is commenced, the practice will need to prove to a court or tribunal why a negative COVID test is a necessary measure on top of the measures already in place.

      To assess whether using rapid antigen testing could be classified as “reasonably necessary’, please see the Department of Health advice, including the PHLN and CDNA joint statement of SARS-CoV-2 rapid antigen tests.

      Step 5: Consider whether refusing entry could amount to discrimination

      State and federal legislation prohibits discrimination on the basis of attributes including disability.

      The term “disability” is defined differently in each jurisdiction but generally includes the presence in the body of organisms capable of causing illness or disease. COVID would fall into this definition and therefore a person with COVID would be considered a person with a disability for the purposes of discrimination law. A person also has a disability if the person is presumed to have the disability (i.e. the practice presumes that everyone without a negative COVID test has COVID).

      It is unlawful for a practice to discriminate against a person on the basis of the person’s disability by refusing them medical treatment or access to practice premises unless:

      • the discrimination is reasonably necessary to ensure health and safety
      • the practice is unable to make reasonable adjustments without it imposing unjustifiable hardship on the practice (for example, the practice should consider whether it can hold an appointment with the patient via telehealth or while wearing full PPE – these might be considered to be “reasonable adjustments”).

      Step 6: Consider whether the situation is an emergency and you have an obligation to provide medical care

      As general rule, a doctor does not have to treat a patient (even in an emergency) if there is a risk to the doctor’s health and safety or the health and safety of other patients under the doctor’s care (see clause 3.5 of Good medical practice: a code of conduct for doctors in Australia).

      In NSW, the situation is slightly different because under the Health Practitioner Regulation National Law (NSW) it is unsatisfactory professional conduct to refuse or fail to attend a person in need of urgent attention when requested to do so. The exception is when the practitioner has taken all reasonable steps to ensure that another medical practitioner attends instead within a reasonable time.

      You should also consider the following guidance from Ahpra – Facilitating access to care in a COVID-19 environment: Guidance for health practitioners

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