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My Patient Won’t Wear a Mask: Now What?

fhlf mandatory mask articleBy: Karen Davila

For some reason, wearing or refusing to wear masks has become a point of personal expression and a topic charged with much emotion.  We hear stories every day about confrontations with consumers in the retail industry.  But what about when a patient refuses to wear a mask?

In many states and counties, face coverings are still mandated in public.  Failure to wear a mask can result in civil or criminal fines or penalties.  In a medical practice, even where not required by local authorities, masks may be required.  In fact, some of the state Boards of Medicine have adopted minimum standards for safe practice.  Those standards frequently include the requirement for both provider and patient to wear masks during all health care encounters.  Where the regulations or Board of Medicine standards require all individuals to wear face coverings, a health care provider is well within his/her right to enforce those regulations within the office where health care services are being provided and to discharge a patient who refuses to comply.  However, caution must be exercised when discharging a patient from a medical practice.

In general, the state Boards of Medicine do not require physicians to treat patients who are physically and mentally capable of wearing face coverings but refuse to do so.  But there are circumstances where a physician may have a duty to provide care and, in such instances, exceptions to the general rule may apply.

Various ethics opinions published by the American Medical Association address a physician’s duty in some of these situations, including by way of example:

  • A physician is required to provide care in emergency situations. This is particularly true in the case of an established relationship. “Physicians have stronger obligations to patients with whom they have a patient-physician relationship, especially one of long standing; when there is imminent risk of foreseeable harm to the patient or delay in access to treatment would significantly adversely affect the patient’s physical or emotional well-being; and when the patient is not reasonably able to access needed treatment from another qualified physician.” AMA Ethics Opinion No. 1.1.7
  • A physician is obliged to provide urgent medical care in certain circumstances during a disaster or pandemic. “When providing care in a disaster with its inherent dangers, physicians also have an obligation to evaluate the risks of providing care to individual patients versus the need to be available to provide care in the future.”  Exposure to risk in the form of treating a patient who refuses to wear a mask can certainly factor into that risk analysis.

AMA Ethics Opinion No. 8.3

  • A physician cannot refuse treatment to an individual solely on the basis of an individual’s infectious disease status. A physician may decline to establish a patient-physician relationship with a prospective patient, or provide specific care to an existing patient, in certain limited circumstances, but those circumstances cannot be based on the fact that the patient has a communicable illness. It is appropriate to decline care after careful consideration if:
    • Meeting the medical needs of the prospective patient could seriously compromise the physician’s ability to provide the care needed by his/her existing patients. “The greater the prospective patient’s medical need, however, the stronger is the physician’s obligation to provide care, in keeping with the professional obligation to promote access to care.”
    • “The individual is abusive or threatening to other patients, the physician, or physician’s staff, unless the physician is legally required to provide emergency medical care.” Physicians should be aware of the possibility that an underlying medical condition may contribute to this behavior. (AMA Ethics Opinion No. 1.1.2).

In advance of being faced with the patient who refuses to wear a mask, the practice should develop a plan that includes:

  1. Communication to each patient in advance of an appointment that a mask is required.
  2. If the patient arrives for the appointment without a mask, provide one to the patient and politely ask them to wear it at all times while in the office.
  3. If the patient continues to refuse to wear a mask, consider refusing to provide care to that patient unless the individual dons a mask.
  4. If the care being sought is urgent or emergent, provide as much protection as possible for other patients and isolate the patient who refuses to wear a mask. Provide care consistent with the scope of the emergency or urgent condition.
  5. If the care being sought is not urgent or emergent, reschedule the patient and advise them that they will not be seen without a mask.

Continued refusal to wear a mask, thereby putting other patients, your staff and you at risk, may be a valid reason for discharging a patient from your practice.  The actual reason for the discharge may arise out of the aftermath of the interaction during which the patient continues to refuse to wear a mask and becomes belligerent, threatening and uses inappropriate language, all of which interferes with a physician’s ability to provide appropriate care and feel safe doing so.

If you decide to discharge an existing patient from your practice, it is important to follow some basic rules:

  • Assure that the reason for discharge is not for any discriminatory purpose or in violation of any laws or rules prohibiting such discrimination (e.g. because the patient has a communicable illness).
  • Do not terminate a patient if you know or believe that the patient will be unable to obtain needed care or services from another provider. Continue to provide care until a transition of care to another provider can be completed.
  • If the patient has an emergency medical condition or is seeking urgent medical care, provide that care.
  • To reduce the risk that a patient will claim abandonment and file a complaint against you or your practice, discuss your intent to discharge the patient directly with the patient and document that discussion in the patient’s medical record (consider having a witness available for that discussion).
  • Notify the patient in writing of the termination and provide at least 30 days’ notice before refusing to provide continuing care. Hand deliver a copy of the discharge letter while the patient is in the office and document delivery. If that is not possible, send the letter via certified mail/return receipt requested.  The letter should include:
    • A statement of the conduct/behavior giving rise to the discharge (i.e. refusal to wear a mask) and the date/time the patient refused to wear a mask and was informed of the consequence of that refusal;
    • A statement that you will continue to be available to provide emergency care and fill necessary prescriptions during the notice period;
    • A description of any medical concerns that may require attention;
    • Instructions for requesting copies of medical records upon selection of an alternative health care provider; and
    • The name of a physician referral service that can assist the patient in obtaining an alternative provider.

Discharging a patient is never easy and requires adherence to a myriad of rules to reduce the likelihood of a disgruntled patient filing a claim or complaint.  In these instances, it is important to confer with your attorneys early to avoid issues that might arise from the improper discharge of a patient from your practice.