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