Wearing a face mask in Healthcare settings - what are the legal exceptions?
Victoria’s Chief Health Office has issued binding Directions to help contain the spread of COVID-19 and keep Victorians safe. These Directions include the requirement for anyone 12 years and over to wear a face mask whenever they leave their home, unless a specific exception applies. The exceptions are listed in the Directions.
Lawful exceptions to not wearing a face mask include:
- Infants and children under the age of 12 years.
- Persons who have a physical or mental health illness or condition, or disability, which makes wearing a face covering unsuitable, including persons with obstructed breathing, a serious skin condition of the face, an intellectual disability, a mental health condition or persons who have experienced trauma.
- Persons communicating with those who are deaf or hard of hearing and visibility of the mouth is essential for communication.
- The person is undergoing dental or medical care or treatment to the extent that such care or treatment requires no face mask be worn.
Health service providers such as hospitals and medical clinics require staff, patients and visitors to wear masks.
People who have a medical condition that prevents them from wearing a mask are not required, under the Directions, to obtain a medical certificate stating they have a lawful reason for not wearing a mask.
Health service providers have a responsibility to protect the health and safety of their staff and patients, many of whom might be at greater risk from a COVID-19 infection.
When a person with a lawful exemption attends a health service provider without a face mask, they are likely to be asked about their reason for not wearing one.
If you have a medical condition that prevents you from wearing a mask, or you are a carer for a person who has a lawful exemption, it is a good idea to talk to the health service provider prior to attending an appointment. The health service provider may need to make special arrangements to ensure that you, or the person you are caring for, can be seen safely. In some circumstances, this might mean a telehealth appointment instead of being seen in person.
You might also be asked to provide proof of your exemption from your GP or a hospital treating team.
If you do not wear a face mask and the health service provider is not satisfied that you can be seen safely, the health service provider may refuse to provide access to the service you are seeking.
A person may make a complaint to a health service provider and to the HCC about an unreasonable failure by the provider to provide a health service that the person has sought.
Whether the refusal to provide a health service to a person who does not wear a mask is unreasonable, will depend on the specific facts and circumstances of the matter.
In deciding how to deal with complaints of this nature the HCC will consider a range of factors including:
- Whether the person was lawfully exempt from wearing a face mask
- Whether the person had communicated with the health service provider about that prior to attending the appointment
- What evidence of the exemption was provided to the health service
- Whether the health service offered an alternative means of providing access to the health service
- Whether the person has complained to the health service provider about the refusal of access and what response and/or explanation was offered by the health service provider.
The Health Complaints Commissioner accepts that health service providers must implement measures which are reasonably necessary to protect the health and safety of staff, patients and visitors. While the Chief Health Officer Directions do not require a person to obtain proof of exemption from the mask mandate, to establish that a refusal of access to a health service on the grounds of failing to comply with a mask mandate was unreasonable, a person would need to demonstrate there was a link between their medical condition or disability and their inability to wear a face mask.