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Mandatory face covering – The medico-legal issues

28 July 2020 | Kate Gillman, BA LLB, Head of the Medico-legal Advisory Service, Avant

With face coverings currently mandatory in Victoria, numerous medico-legal questions have arisen for doctors.

Our medico-legal and employment advisers answer your questions, including whether you can refuse entry to someone not wearing a mask or if you need to provide a medical exemption certificate to patients who are unable to cover their face?

Legal requirements

The Victorian Stay at Home Directions (Restricted Areas) (No. 4) (The Directions) require people (over the age of 12 years old) to wear a face covering at all times when they leave their home, unless one of the exceptions listed in the Directions applies. This includes that the person has a physical or mental health illness or condition, or disability, which makes wearing a face covering unsuitable. The term “unsuitable” is not defined in the Directions and the dictionary term is “… not fitting, not appropriate, not right for a use or purpose”.

Can we refuse entry to patients who refuse to wear face coverings at the practice?

As an occupier of a private medical practice you are entitled to take reasonable steps to protect your staff and other patients on the premises by making it a condition of entry that a person wear a face covering or use hand sanitiser on arrival at the practice, unless they have a lawful reason not to wear a face covering. Patients who attempt to enter the premises in breach of these conditions may be removed for trespassing.

Although steps taken to protect the practice cannot be discriminatory, the Directions state that people with disabilities must still wear a face covering unless it is unsuitable to do so for “… medical, physical, communication or other individual risk factors”. However, people are permitted under the Directions to remove their face coverings if they are communicating with a person who is deaf or hard of hearing, where the ability to see the mouth is essential for communication.

What are the exceptions for people to wear face coverings at work?

Under the Restricted Activity Directions (Restricted Areas) (No 3), employers whose premises are located in the restricted areas cannot permit employees to work at those premises if it is reasonably practicable for staff to work at home or another suitable premises.

Where it is not reasonably practicable for employees to work from home the employer has to take reasonable steps to ensure the employee wears a face covering at all times at the premises, other than for short breaks away from other people. Unless the employee has a medical reason for not wearing a face covering or the nature of the work means that wearing a face covering creates a risk to the person’s health and safety.

Other exceptions are where the work requires clear enunciation or visibility of the mouth such as teaching, lecturing or broadcasting, or when a “professional sportsperson” is training or competing.

The Department of Health and Human Services (DHSS) states that the following occupations are, for example, required to wear face coverings:

  • construction workers – subject to any occupational health and safety assessments
  • call centre workers.

A face covering for these purposes includes a face mask or face shield designed or made to be worn over the nose and mouth to provide the wearer protection against infection.

Is it necessary to obtain a medical exemption if you have a medical reason for not wearing a face covering outside or at work?

The DHSS has published guidelines about the use of face masks and coverings which state: “You do not need a medical certificate stating that you have a lawful reason for not wearing a mask. If you have a lawful reason for not wearing a mask you do not need to apply for an exemption or permit. If you are stopped by police, they will ask you to confirm the lawful reason you are not wearing a mask.”

However, $200 fines will be applied to people who do not wear a face covering unless they have a valid reason for an exemption. Recent media reports indicate the police will be less “discretionary” in imposing fines if they are not satisfied with the reason provided.

Likewise, employees are asking their doctors for exemption letters where they are unable to wear a face covering at work.

It is therefore likely that, over time, patients will request a medical exemption certificate to produce if they are stopped or fined by the police or required to wear a face covering at work.  

If a patient requests a medical exemption certificate what are the medical reasons that would be acceptable to consider?

The examples listed in the Directions are:

  • obstructed breathing
  • a serious skin condition on the face
  • an intellectual disability
  • a mental health illness, or
  • people who have experienced trauma.

As with any medical certificate, you need to be mindful of your obligations under the Medical Board’s Good Medical Practice: a code of conduct for doctors in Australia which says you should only sign documents you believe to be accurate. For more information, read our article on providing medical certificates during COVID-19.

The RACGP has confirmed that you are not obliged to provide this documentation, and GPs are encouraged to “… use these letters wisely, as with all medical certification” on the basis that it is a public health benefit to wear a face covering if you are able to do so.

The President of the Royal Australian and New Zealand College of Psychiatrists has also stated that:

“Wearing a face mask is a very community-minded and selfless practice which can help protect you and those around you, particularly if you are around people of older age or with other chronic conditions”.

Some of the factors we suggest you consider are:

  • Does the patient have an illness, condition or disability which makes wearing a face covering unsuitable, at all times, or only at certain times (for example, when they are actually experiencing symptoms of breathing difficulty as opposed to having well controlled asthma)?
  • Have the patients considered wearing different types of face covering?
  • Do organisations such as the Lung Foundation have advice about the use of face coverings that can be given to the patient if appropriate?

You can find further information and a suggested template letter on the RACGP’s website.

It is important to document the medical reason for providing the exemption, and that you have advised the patient about the risks of not wearing a face covering, both in terms of contracting and spreading COVID-19, so it is clear they are making an informed decision.

Useful resources

If you require medico-legal advice on this or any other issue, email us on nca@avant.org.au or call 1800 128 268, available 24/7 in emergencies.

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