Refusal to treat unvaccinated patients in non-emergency situations: a global healthcare perspective

We provide a global perspective on whether it is legally permissible for medical practitioners to refuse to undertake face-to-face consultations with unvaccinated patients (who are eligible for COVID-19 vaccination) in non-emergency situations to protect healthcare workers and staff, and to avoid clinic closures due to exposure to unvaccinated COVID-19 positive patients.

Use the links below to navigate to jurisdictions of interest:

Asia Pacific: Australia | Hong KongThailand

Latin America: Chile

EMEA: Denmark | England | France | Israel | Portugal | Spain 

Asia Pacific

Australia

There are currently no formal guidelines in place in Victoria which determine that it is legally permissible for private specialists to refuse to undertake face-to-face consultations with unvaccinated patients in non-emergency situations.

Accordingly, if medical practitioners refuse to undertake face-to-face consultations with unvaccinated patients in non-emergency situations, there remains a risk of a notification to the Australian Health Practitioner Regulation Agency on the basis that their conduct may be below the standard expected and that they may pose a current or future risk to patient safety. In order to mitigate against the Medical Board taking regulatory action, medical practitioners should take all reasonable steps to ensure unvaccinated patients are not denied access to medical care.

Medical practitioners must abide by the Medical Board’s Good medical practice: a code of conduct for doctors in Australia (Code), which stipulates the standards of ethical and professional conduct. We have extracted the relevant sections of the Code below:

Relevant sections

  • Clauses 3.1 and 3.1.4: the care of your patient is your primary concern; good patient care includes referring a patient to another practitioner when this is in the patient’s best interests.
  • Clause 3.4.2: not prejudicing a patient’s care because a practitioner believes that a patient’s behaviour has contributed to their condition.
  • Clause 3.4.3: not discriminating against a patient on grounds such as race, religion, sex, gender identity, sexual orientation, disability or other grounds, as described in anti-discrimination legislation.*
  • Clause 3.4.7: not allowing your moral or religious views to deny patients access to medical care, recognising that you are free to decline to personally provide or directly participate in that care.
  • Clause 3.4.5: keeping yourself and your staff safe when caring for patients. If a patient poses a risk to your health and safety, or that of your staff, take action to protect against that risk. Such a patient should not be denied care if reasonable steps can be taken to keep you and your staff safe.
  • Clauses 8.1 and 8.1.2: making patient safety the first priority and understanding and applying the key principles of risk minimisation and management in your practice; taking all reasonable steps to address the issue if you have reason to think that patient safety may be compromised.
*In Australia, there are Commonwealth and state/territory anti-discrimination laws (both of which must be complied with), including the Age Discrimination Act 2004 (Cth), Australian Human Rights Commission Act 1986 (Cth), Disability Discrimination Act 1992 (Cth), Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth), Discrimination Act 1991 (ACT), Anti-Discrimination Act 1977 (NSW), Anti-Discrimination Act 1996 (NT), Anti-Discrimination Act 1991 (QLD), Equal Opportunity Act 1984 (SA), Anti-Discrimination Act 1998 (TAS), Equal Opportunity Act 2010 (VIC) and Equal Opportunity Act 1984 (WA). These generally overlap and prohibit the same types of discrimination.

In relation to clause 3.4.3, vaccination status is not a protected attribute under anti-discrimination legislation in Australia. Therefore, refusing to provide care to unvaccinated patients is unlikely to constitute discrimination, unless they can prove they are unvaccinated because of a protected attribute (such as those listed in clause 3.4.3).

In our view, the overriding obligation in the Code is that medical practitioners must take all reasonable steps to ensure they do not prejudice or deny patients access to medical care. 

In addition to the standard COVID-19 safe protocols, we consider that reasonable steps to minimise the risk an unvaccinated patient may pose to medical practitioners, other patients and staff may include:

Reasonable steps

  • Having a dedicated examination room for unvaccinated patients.
  • Having dedicated appointment times for unvaccinated patients.
  • Requiring proof of a recent negative COVID-19 test being a condition of attending face-to-face consultations.
  • Offering to provide a referral to another medical practitioner who is able to offer face-to-face consultations to ensure continuity of care.

Taking into account the above, if a notification is made to the Medical Board for refusing to undertake face-to-face consultations with unvaccinated patients, medical practitioners, if relevant, may submit that their conduct was at the standard expected of them because of the following:

Conduct standards

  • The practice is inadequately supplied with personal protective equipment (PPE).
  • The practice has a high-risk patient demographic, for example patients that:
    • Are aged 70 years and over.
    • Are vaccine exempt.
    • Have conditions which compromise their immune systems.
  • The practice does not have adequate space inside.
  • Face-to-face consultations with unvaccinated patients would seriously compromise the medical practitioner’s ability to provide care to other vaccinated patients.
  • The practice is located in an area that is experiencing a high volume of COVID-19 cases.
  • The unvaccinated patient refused referral to another medical practitioner.

Hong Kong

In Hong Kong the Medical Council’s Code of Professional Conduct provides that doctors need to weigh up two countervailing duties:

  • Their special moral duty of care to save lives and to relieve suffering, and that medical ethics emphasises the priority of this moral ideal over and above considerations of personal interests and private gains.
  • Their duty to take adequate precautions to ensure that the risk of spreading infection to themselves and to others is minimised.

The informal position in Hong Kong at present is that if a patient is not a suspected or confirmed COVID-19 case, then the doctor would still be under a duty to provide normal medical care to that patient, assuming that adequate PPE is available.

Thailand

Vaccination is not mandatory in Thailand, however medical practitioners can refuse to see or examine a patient for any reason unless the patient’s condition is an emergency.

We have not yet experienced any claims regarding a refusal to consult face-to-face with a patient based on vaccination status. Use of facemasks is mandated and business owners may set conditions that customers must be vaccinated in order to be on premises. However, we are not currently aware of any healthcare providers who have stipulated conditions of this nature.

Latin America

Chile

Vaccination is not mandatory in Chile, but the use of facemasks in public places is. Patients, by law, should be wearing a facemask.

Refusing to consult with a patient face-to-face based on their vaccination status would be in violation of laws governing patient rights that prohibit discrimination of any kind. This could result in fines for practitioners.

Article 20 of the non-binding Medical Code of Ethics permits a practitioner to deny consultation on the basis of conscientious objection, provided that the practitioner procures another colleague to provide the consultation instead.

EMEA

Denmark

In Denmark, regulations stipulate that a general practitioner cannot lawfully refuse to consult face-to-face with unvaccinated patients and cannot demand that a patient wears a facemask.

England

As in Australia, there is an absence of formal guidelines or legislation surrounding the issue of treating unvaccinated patients. Everyone attending NHS premises are strongly encouraged to wear face masks, with all staff specifically required to do so. Whilst it has not been tested, we anticipate private healthcare practitioners could in theory refuse to treat an unvaccinated patient. This cannot be the case for NHS patients though.

This is due to a number of important principles which we have been discussing in hospital Ethics Committees:

Principles

  • The NHS Constitution has at its core the principle that healthcare is freely accessible to all at the point of delivery and this is not qualified based, for example, on a person’s ideological or religious views.
  • If access to NHS treatment was determined by a patient having been vaccinated, that would effectively take away their right to consent to or refuse the vaccination or at least placing such a condition on NHS treatment would likely be seen as unduly influencing the consent process.
  • If treatment under the NHS could be refused it would create a two tier access for the unvaccinated. As such, there would be some unvaccinated people who cannot be vaccinated for medical reasons and others who choose not to be vaccinated for other personal reasons (or no reasons at all). If an NHS clinician could refuse to treat one such unvaccinated patient but agree to treat another, that would be inequitable.

Following a recent consultation, the government intends to introduce measures making COVID-19 vaccination “a condition of deployment for all frontline health and social care workers”, including volunteers.

A government announcement on 9 November 2021 stated:

“The regulations will apply to health and social care workers who have direct, face-to-face contact with people while providing care – such as doctors, nurses, dentists and domiciliary care workers, unless they are exempt. They will also apply to ancillary staff such as porters or receptionists who may have social contact with patients but are not directly involved in their care. This will apply across the Care Quality Commission (CQC) regulated health and social care sector.”

Two key exemptions will apply – one for those who do not have face-to-face contact with patients and the other applying to those who are medically exempt.

The measures are subject to parliamentary approval and the intention is for the condition to come in to force 12 weeks following approval, the aim being for enforcement to commence on 1 April 2022.

France

In France, since 9 August 2021, a vaccine passport (pass sanitaire) is compulsory for access to certain places, including certain medical facilities. As a result, patients who currently want to access face-to-face consultations with their doctors may need to be tested negative or be fully vaccinated prior to accessing the facility. However, this requirement is not systematic and depends on the type of medical facility in which the patient is admitted as well as on the seriousness of their medical condition.

More specifically, Law No. 2021-1040 of 5 August 2021 regarding management of the health crisis, provides a list of activities and places for which a vaccine passport can be required. Article 11 d) of the aforementioned Law mentions “health, social and medico-social services and facilities”. However, the legislator has narrowed the scope of such requirement by limiting the types of facilities and people concerned by it:

Limits

  • Pursuant to article 1 of Decree No. 2021-1118 of 26 August 2021, the facilities concerned are those mentioned in 2°, 3°, 5°, 6°, 7°,9° and 12° of I. of article L.312-1 of the Social Action and Families Code. This includes hospitals. On the other hand, consultations in facilities with generalist practitioners as well as with specialised practitioners such as ophthalmologists, dermatologists or paediatricians are not subject to prior presentation of the vaccine passport.
  • Under article 1, 1° d) of Law No. 2021-1040, the vaccine passport is only required for persons accompanying or visiting patients as well as for the patients themselves if they are accompanied to the facility for scheduled care. However, in case of medical emergency, no vaccine passport is required.

These measures were approved by the French Constitutional Court (Conseil Constitutionnel) in its decision No. 2021-824 issued on 5 August 2021. In particular, regarding the necessity for patients to present a vaccine passport, the Court decided that it was constitutional as long as it did not obstruct access to care.

In conclusion, at present it appears that the vaccine passport can be required in medical facilities under certain conditions (as above). When these conditions are met, failure to present a vaccine passport could be considered as a valid reason to refuse face-to-face consultation with the unvaccinated patient. In such circumstances, it seems that refusal to consult with the patient would not be seen as an illicit denial of care.

However, no formal decision has been issued on the subject. In practice, these measures might not be implemented as several hospitals – such as Hospital Saint Louis of La Rochelle (France) – assured that even if a patient is tested positive for COVID-19, he or she would still be allowed to enter the hospital and thus, have access to a consultation with a doctor. The only difference would be that more precautionary measures would be taken.

The vaccine passport might remain in force until 31 July 2022 as the “Health Surveillance” bill, which allows an extension of the vaccine passport until that date, was passed on 5 November 2021. It must however be specified that several opposition MPs challenged the constitutionality of such extension before the Constitutional court. Unless the Court rules in their favour, the bill will most certainly be enacted on 15 November 2021.

Israel

In Israel vaccination is also voluntary and medical practitioners are not entitled to refuse the provision of medical services to any person solely on vaccination status.

However, certain medical institutions require patients that are not vaccinated to receive medical treatment in designated, separate and confined rooms.

Portugal

Vaccination in Portugal is voluntary and it is on this basis that practitioners cannot refuse to consult face-to-face with unvaccinated patients. However, Portugal does mandate the use of face masks, which allows (but does not mandate) medical practitioners to refuse a face-to-face consultation.

In Portugal, a medical practitioner cannot refuse to provide care to a patient who is in imminent danger of death or if there is no other doctor of equivalent qualification to whom the patient can turn to. In all other situations, a medical practitioner can only refuse to consult with a patient face-to-face where the cumulative requirements of article 41(2) of the Medical Code of Ethics (the Code) are met. Pursuant to article 41:

  • There is no harm to the patient, namely because it is possible to ensure assistance by a doctor of equivalent qualification.
  • The medical practitioner has provided the necessary clarifications for the regular continuity of treatment.
  • The patient or the family has been warned in sufficient time to ensure substitution.

Pursuant to article 41(3) of the Code, the inability to control an illness does not justify abandonment of the patient.

Pursuant to article 41

  • There is no harm to the patient, namely because it is possible to ensure assistance by a doctor of equivalent qualification.
  • The medical practitioner has provided the necessary clarifications for the regular continuity of treatment.
  • The patient or the family has been warned in sufficient time to ensure substitution.

Spain

There are currently no regulations or guidelines in Spain regarding the treatment of unvaccinated patients. There have not yet been particular concerns raised about the treatment of unvaccinated patients, as 90% of the population in Spain over the age of 12 have been vaccinated.

However, it is considered that as doctors have the obligation to give the best medical assistance possible, not attending patients due to their vaccination status could be considered discriminatory behaviour in Spain as:

  • Unvaccinated does not mean that a patient has COVID-19.
  • Being vaccinated does not mean that a patient cannot have COVID-19.
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