A medical practice that banned two patients for refusing to wear masks has recorded a legal victory against the pair, after they sued for discrimination.

While the substantial case is ongoing, medical indemnity insurer Avant says the decision shows there is legal support for practices that require face coverings, provided their rules are reasonable.

The Ashgrove Clinic in Brisbane terminated its therapeutic relationship with the pair last October, citing repeated breaches of its pandemic mask policy.

Under the policy, patients attending face-to-face appointments were required to wear a face covering at all times, with those unable to do so expected to wait outside or receive their care via telehealth.

Claiming medical exemptions, the pair rejected both options and subsequently took their case to the Queensland Civil and Administrative Tribunal demanding an injunction to require the clinics doctors to see them unmasked.

They said a receptionist at the practice asked them to wait outside and ultimately, that her ‘ongoing discrimination’ against them culminated in the GP stating they had threatened and abused clinic staff and were barred from any further attendance.

The pair went on to say they had been racially vilified by the receptionist, who allegedly told them “I don’t want your kind in my clinic” as they stood in the waiting room.

“They submit that this comment constituted racial discrimination and/or racial vilification,” the tribunal said.

They claimed the receptionist had attempted to enforce an unlawful policy — mask wearing for people with a medical exemption.

The pair argued the ban was discrimination based on medical impairment and race, also claiming that telling them to wait outside was indirect discrimination.

The practice’s owners disputed all allegations of racial vilification as baseless, saying none of its staff had ever brought up the patients’ race.

Besides that, the pair had also repeatedly intimidated and threatened staff, the owners said.

They pointed out the mask policy had been introduced last year in response to an evolving global pandemic and variable advice from Queensland Health.

On top of that, the practice would have discontinued the therapeutic relationship with an any patient who was non-compliant with its policy and who abused its staff, provided it was safe to do so.

In findings handed down earlier this year, QCAT member Samantha Traves said the patients’ case was a weak one (link here).

“The reason the [patients] were asked to wait outside until their appointment was because they refused to wear a mask, not because of their race or due to their underlying medical conditions,” she said.

“Accordingly, the [patients] were not treated any less favourably than any other patient would have been treated.”

The judgement 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”.

Stuart Kollmorgen, a senior solicitor on Avant’s workplace law team said the decision should give comfort to practices with similar rules in place requiring face coverings.

“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,” he said (link here).

“Helpfully, discrimination legislation includes an exemption from discrimination where action is necessary to ensure health and safety.”

He said practices should ensure they gave sufficient reasons for requiring masks, adding that guidance on the subject had been issued by the Medical Board of Australia.

“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,” he added.