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Face covering disability discrimination legal claim dismissed

13 September 2022 | Stuart Kollmorgen, LLM, MSc, BComSenior Associate, Workplace Law Team

A recent decision supports a medical practice’s right to apply a face covering policy. The tribunal decided that it may not be discriminatory for the patients to be denied entry to the practice without a face covering.

In the case, a medical practice, medical practitioner and receptionist were sued for disability discrimination, and an injunction sought to require the practice to see the patients without masks until the final hearing of the matter. Their practice policy required all patients attending face-to-face appointments to wear a mask. If patients were not able to do so, they could receive medical services by alternative means, but the patients refused the alternatives.

Tribunal backs practice

The patients asked the tribunal to direct that they could attend a medical appointment at the practice without a face covering, pending the outcome of their discrimination claim to be heard at a later date. The tribunal refused to give this direction. It said the patients’ case was weak, noting it was a defence for the practice to show its policy was reasonable. It went on to say, the practice “may well be able to show, in the face of the global pandemic and in view of the nature of services being provided, that the [mask-wearing] policy was reasonable”.

While this decision is an interim decision only, it will support medical practitioners and practices who are facing similar complaints from patients about face coverings. Helpfully, discrimination legislation includes an exemption from discrimination where action is necessary to ensure health and safety.

Giving sufficient reasoning

Practices can require patients to wear a face covering in a medical practice as a result of public health directions or as a result of a risk assessment process undertaken by a medical practice. You can find further information about risk assessment in Avant’s fact sheet .

We have assisted many members and practices respond to complaints to a regulator or a discrimination commission. In most cases, the complaint was withdrawn or no further action was taken.

Grounds for discrimination

Most patient complaints to a discrimination commission allege the medical practitioner or practice discriminated on the grounds of the patient’s disability by requiring the patient to wear a face covering. The patient claims they cannot wear a face covering due to a medical condition.

Medical practitioners and practices are left in the difficult position of balancing the right of patients who are unable to wear a face covering, against the right of other patients (many of whom are elderly, immunosuppressed or very unwell) and practice staff to a safe practice environment. 

Ahpra and the National Boards have published guidance about facilitating access to care in a COVID environment, which supports medical practitioners and practices to balance these conflicting rights.

Help us to help you

In our experience, the following approach will put you in the best possible position to defend a discrimination complaint.

  • Conduct a risk assessment about face coverings in consultation with staff (under work health and safety laws).
  • Implement a policy about face coverings.
  • Train staff in relation to the policy and discrimination laws.
  • Conduct ongoing risk assessments based on the status of the COVID pandemic and patient experience and amend the practice policy as appropriate.
  • Make alternative treatment options available for patients who cannot wear a face covering in the practice such as:
    • telehealth appointments;
    • use of a face shield;
    • use of separate waiting areas;
    • appointments after hours; or
    • attending a different clinic where staff can deal with unmasked patients.

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