Patient loses legal challenge against hospital mask policy


By Siobhan Calafiore

7 Aug 2023

A patient who claimed the Alfred Hospital discriminated against her by requiring her to wear a face shield despite her skin rash has had her legal case thrown out.

The Melbourne resident attended the hospital’s bariatric clinic in June 2021, at the height of the COVID-19 pandemic, maskless with a medical certificate from her GP stating that she was advised not to wear a mask until her facial seborrheic dermatitis rash resolved.

She accused the hospital of making her wear a face shield without consent, making her sit in an isolated cubical away from the general waiting area, threatening to refuse to provide medical services to her, and providing her with sub-standard care.

The patient also alleged that no one at the hospital read the letter from her doctor and that her requests to remove the face shield were repeatedly denied.

While she had 60 days to escalate the matter to the Federal of Court of Australia after her complaint was dropped by the Australian Human Rights Commission in late 2021, she made an application for an extension six and a half months later.

She submitted that she had been directly discriminated against on the basis of her disability, which she identified as her skin rash, and that the face shield caused her injuries, including:

  • exacerbation of her skin rash
  • blistering
  • a cut to her neck
  • headaches
  • dry-retching
  • symptoms stemming from a reflux attack, mistaken for a heart attack
  • residual marks, swelling, and lumps on her face
  • psychological and emotional damage, distress, and humiliation

In support of her alleged injuries, the patient produced a letter from her GP dated more than six months after the hospital visit, in which he stated that she had a swollen and red face, a painful rash and also noted the presence of small blisters.

In response, the Alfred presented the opinion of Associate Professor Douglas Gin, who is a fellow of the Australasian College of Dermatologists and head of the dermatology department at the Alfred, who reviewed the supplied photographs.

He made multiple points, including that:

  • the applicant had a fairly severe case of seborrheic dermatitis
  • while the wearing of a face mask might have exacerbated the applicant’s skin condition, the wearing of a face shield would be highly unlikely to have done so
  • any allergic reaction to the face shield would be localised to the hairline where the shield made contact with the skin; there was no evidence of such a reaction.

The judge also noted from looking at photographic evidence that the shield worn during the alleged incident did not appear to be in contact with the patient’s face.

Among the other claims made by the applicant, she said both the heat and the brightness of the cubical where she was waiting increased irritation to her skin.

She also said that while she was waiting in the cubicle, she telephoned the Alfred asking to speak with the chief executive officer but the call was abruptly terminated.

When the patient was called in for her appointment, she claimed the doctor inquired about her day to which she replied she was “quite annoyed and pissed off”. She claimed the doctor then told her to stop threatening him or else he wouldn’t see her.

The patient reported the alleged conduct to multiple bodies, including:

  • Victoria Police
  • Victorian Ombudsman
  • Health Complaints Commissioner
  • Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability
  • IBAC (Victorian Independent Broad-based Anti-corruption Commission)

She also made complaints to the Victorian Police Conduct Unit and the National Health Practitioner Ombudsman regarding the conduct of Victoria Police and AHPRA, respectively, due to their lack of progress in investigating her matter.

In response to the allegations, Alfred Hospital said it had duties of care to staff and patients around the spread of COVID-19 and pointed to its policies and practices.

It also said that face shields and physical distancing for those with face mask exemptions were identified as appropriate risk mitigation strategies and standard practice, and that her treatment had not occurred “because of” her disability.

In a judgement dated 24 June 2023 [link here], Justice Michael Wheelahan agreed.

“It is impossible to ignore that the respondent was providing medical services in June 2021 when there was a public health emergency on foot in relation to a disease caused by a contagious virus that resulted in the death of vulnerable people,” he said.

“The respondent had stringent legal obligations as an employer, as an occupier, and had non-delegable duties of care to all its patients as the operator of a public hospital.

“In the above legal and practical context, it would be counter-intuitive, and indeed it would offend common sense, to think that the respondent discriminated against the applicant in the way alleged because it took the protective measures of requiring the applicant to wear a face shield instead of a face mask, and directed her to a cubicle rather than a public waiting area.

“It has not been shown that there is any arguable case that the applicant, by reason of her skin rash, was treated any less favourably than any other person who attended the hospital.”

He concluded that the applicant’s claims of contravention of the Disability Discrimination Act were not of “sufficient merit” to justify an extension of time to bring the proceeding nor in the interests of the administration of justice to allow it.

The judge made no order related to costs.

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