Updated 22 November 2021
Medical Protection has received many recent queries from members about their obligations to treating patients who have not been vaccinated against COVID-19. Here we address some of these queries and summarise the key guidance.
The first case of COVID-19 in New Zealand was reported on 28 February 2020. The Delta variant is now the dominant strain in New Zealand, and government policy changed on 4 October 2021 from a strategy of elimination to one of suppression. It is likely that COVID-19 will exist in the community for the foreseeable future and will be encountered by doctors.
The existing COVID-19 Public Health Response (Vaccinations) Order 2021 will require anyone conducting high-risk work in the health and disability sector to be fully vaccinated by 1 December 2021.
With reference to the Health and Safety at Work Act 2015, some private businesses have adopted policies seeking to exclude unvaccinated people from their premises.
The government has indicated that future laws will exclude unvaccinated people from certain places, such as music festivals. However, the Prime Minister is on record saying that unvaccinated people will not be prevented from accessing essential services, including healthcare. The Ministry of Health has stated that any future vaccine certificate legislation “will be very clear that access to essential services, including healthcare services, cannot be restricted based on vaccination status”. This guidance will be updated if and when any new laws are enacted.
The Ministry of Health has published a “Position statement on the management of unvaccinated individuals in healthcare settings” (18 November 2021). This document represents government policy and is not the final word on the law.
The Royal New Zealand College of General Practitioners has published a statement on “Principles of care: unvaccinated patients” (21 October 2021).
The Medical Council has published brief guidance on “Providing medical care to patients not vaccinated against COVID-19” (18 November 2021) which includes:
- “The Medical Council has an expectation that doctors will not refuse to treat those who are unvaccinated …”
- “As with every health care interaction, doctors should assess the risk to their own safety and implement appropriate evidence-based measures commensurate with the level of that risk.”
Notwithstanding the Medical Council’s ‘expectation’, it remains unclear whether a reasonable decision to decline consultations with unvaccinated patients based on a thorough risk assessment could be regarded as professional misconduct.
The most relevant Standards adopted by the Medical Council are:
It is recommended that doctors familiarise themselves with these standards.
What must doctors do?
- You must offer to help in an emergency, taking account of your own safety, scope of practice and the availability of other options for care.
- You must not refuse or delay treatment because you believe that a patient’s actions have contributed to their condition. Nor should you unfairly discriminate against patients by allowing your personal views to affect your relationship with them. Your personal beliefs, including political, religious and moral beliefs, should not affect your advice or treatment.
- Any decision to decline consultations with unvaccinated patients should be motivated by risk management, not prejudice against unvaccinated patients’ choices.
- You must ensure continuity of care – which may mean facilitating transfer to a different doctor with appropriate handover.
Starting point — assessing and mitigating risk
Each workplace will need to assess the risk of COVID-19 transmission and make decisions about how to manage that risk. Such assessments may include (amongst other things) the vulnerability of staff, the vulnerability of other patients and any increased risk presented by unvaccinated patients. You should also take into account the prevalence of COVID-19 in your community.
You may decide that unvaccinated patients require additional risk mitigation and need to be managed differently from vaccinated patients. It is however noted that the Ministry of Health discourages this and takes the position that “there is currently no evidence that the application of an alternative pathway based solely on vaccination status, or the routine incorporation of unvaccinated asymptomatic individuals into a high-risk pathway is justified”. That said, the government ‘traffic light’ system makes a clear distinction between the vaccinated and unvaccinated, in terms of risk. It is prudent to stay abreast of the up-to-date evidence (which is changing rapidly) to appropriately assess risk.
General practice/urgent care
Managing unvaccinated patients
If you conclude following a risk assessment that unvaccinated patients present a sufficiently high risk that additional mitigation measures are justified, these may include:
- Phone triage and phone consultations where clinically appropriate
- Isolating them from other waiting patients
- Seeing them in an area that is entirely separated from asymptomatic patients with appropriate precautions in place (PPE, ventilation and cleaning)
- Using additional PPE
- If practicable and clinically appropriate, requiring unvaccinated patients to test negative for COVID-19 prior to any in-person consultation. If an unvaccinated patient tests positive for COVID-19 prior to the consultation, consider what options may be suitable. For example, proceeding with full PPE, referral of the patient to another practice equipped to deal with COVID-19 positive patients
- Exempting more vulnerable staff from providing care to them.
The same measures can be adopted for patients who refuse to wear a facemask.
Some clinicians may feel that those patients who have clinically legitimate reasons for not using facemasks or remaining unvaccinated should not be charged more for GP services. If the practice has a standard charge that they apply for the use of PPE in these situations, clinicians do have the discretion to waive that charge in specific circumstances, if they feel it is appropriate. You are not required to accept self-declared facemask ‘exemptions’ as legitimate.
GP practices are, however, required to provide care to all enrolled patients (including unvaccinated patients) within the terms of their service agreement with a PHO. PHO service agreements are, however, likely to provide for circumstances where the doctor-patient relationship may be terminated – meaning the transfer of enrolment to a different practice. It is recommended you seek specific advice if you are considering ending the doctor-patient relationship because a patient refuses to be vaccinated. This is because of the risk of an adverse decision from a regulator such as the Medical Council, HDC or Human Rights Commission.
If a GP practice concludes for health and safety reasons that it would prefer not to provide care to unvaccinated patients, this may be communicated to patients in a respectful way that preserves confidentiality. You will, however, need to continue providing care to unvaccinated patients while they remain enrolled with you and it is recommended you do not decline to provide care or seek to end the doctor-patient relationship without seeking specific advice.
Private healthcare providers
In addition to the steps outlined above to manage the increased risk unvaccinated patients present, private healthcare providers may, following a risk assessment, decide to:
- Charge more for any additional time or PPE needed to manage risk
- Consider adopting a policy that limits services provided to unvaccinated patients.
Before taking the step of adopting a policy that limits services provided to unvaccinated patients, you should:
Consider whether you can adequately minimise the risks of COVID-19 in other ways
Consider whether any existing patients who are unvaccinated will be disadvantaged, including whether continuity of care can be maintained
Consider whether there is an equivalent healthcare provider that is accessible (eg local) and which you will be able to refer unvaccinated patients to
Ensure the policy does not affect the provision of care to unvaccinated patients seeking healthcare that is urgent and essential.
It is also recommended that you seek specific legal advice.
District Health Boards
It is very unlikely that District Health Boards (DHBs) will consider declining services to unvaccinated patients. The employment obligations of DHB doctors will determine what they must do. Where DHB doctors consider the workplace is unsafe or their individual circumstances mean they should not have contact with unvaccinated patients, they should seek assistance from their union.
Risk and disclaimer
- HDC complaints
- Referrals to the Medical Council or other relevant regulatory authorities such as the Psychologists Board, Nursing Council, Physiotherapy Board or Dental Council
- Allegations of indirect discrimination under the Human Rights Act 1993.
This is a complex area in which to give advice, as the courts have not yet considered any cases of unvaccinated people being refused services. In general:
It cannot be ruled out that regulatory authorities such as the Medical Council may adopt the position that it is unethical to decline services to unvaccinated patients (particularly so given the government position articulated by the Ministry of Health). It is, however, likely that doctors would be given time to change their policies. This issue is unlikely to be treated as a disciplinary matter.
It cannot be ruled out that a patient may complain to the Human Rights Commission and endeavour to have their feelings of discrimination litigated before the Human Rights Review Tribunal. While there are strong defences to a claim of indirect discrimination, it is impossible to completely exclude the possibility of an adverse finding.
This article is intended as general guidance. It is not specific legal advice, nor a guarantee that the recommended approach will avoid criticism or adverse findings.