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:

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.

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

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.

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.

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.

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:

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.

Those GPs managing COVID-19 positive patients in the community should be familiar with the information provided by credible sources.

The RACGP has published RACGP - Home-care guidelines for patients with COVID-19 for GPs, and has provided links for other material including where patients have co-morbidities RACGP - Clinical care and individual state and territory advice RACGP - Coronavirus (COVID-19) information for GPs.

If you are caring for COVID-19 patients in the community, you should be familiar with the red flag symptoms that indicate the care of patients should be transferred to hospital.

The Department of Health in Victoria has published Primary care guidance for the response to COVID-19 risks | health.vic.gov.au, and it is hoped other states and territories will also provide further specific information.

Clinical flowcharts are available at Home - National COVID-19 Clinical Evidence Taskforce (covid19evidence.net.au)

You may wish to direct your patients to sites including RACGP - Managing COVID-19 at home with assistance from your general practice and COVID-19 - coronavirus, vaccination, symptoms, testing and treatment | healthdirect

It is important that you and your practice are also aware of the potential impacts on you:

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:

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: