Today’s question comes from an academic in a Victorian nursing program. Part of their class work involves a discussion on:
… the difference between private and public hospitals in Australia.
When looking at the issue, I came across a comment from the US that said that in the US, Private hospitals can refuse treatment whereas public hospitals cannot.
Is this the case in Australia?
I know that Private hospitals want payment up front, I’m not sure however what would happen if a patient was not able to make that payment (presumably it would be determined by the severity of the patient’s condition, and how this would be determined, I’m not sure – is life-threatening enough?). In my experience AV always ask if a patient is privately insured before transport to a Private facility and also advise that there is an upfront cost. If they are not prepared to pay, AV has suggested that they go to a Public hospital instead. I’ve also heard of an ED doctor tell a patient to leave the Private hospital and had refused to treat them. Are you able to let me know the legal position?
It stands to reason that private hospitals can refuse to treat patients. They are a business and are entitled to decide who they contract with. Provided they service isn’t refused on grounds that are unlawful under anti-discrimination legislation a private hospital is free to decide who it will accept as a patient. They can refuse treatment if you can’t pay, but not on the grounds of gender, race etc.
In light of the content of this blog and the specifics of the question I infer that the real question is can they refuse to assist a person in an emergency. That is a slightly different issue.
In Victoria public hospital service principles are established by agreement between the State and the Federal Governments (Health Services Act 1988 (Vic) s 17AA). Let us assume that the principles established ensure that a public hospital must treat all persons that arrive at the hospital including emergency patients even if they do not have an emergency department. In that case the expected care may be limited but they couldn’t simply shut the door and say ‘we don’t treat emergency cases’.
The Minister may enter into an agreement with a private hospital for that hospital to provide ‘health services to public hospital patients’ (Health Services Act 1988 (Vic) s 69B). A private hospital or day procedure centre may be specifically licensed to provide emergency health care services (Health Services (Private Hospitals and Day Procedure Centres) Regulations 2013 (Vic) rr 6 and 7). If a private hospital is licensed to provide emergency services and has an agreement with the state government to provide those services to public hospital patients then, whilst it might depend on the specific terms of the agreement, one can infer that the hospital could not refuse to treat any emergency patient that arrived at the hospital. (For an example of that sort of public/private arrangement to deliver public emergency health care in the Australian Capital Territory, see the Calvary Public Hospital in Bruce, ACT).
What of other private hospitals. Not all private hospitals provide or have the capacity to provide emergency services, or other specialised health services. It must be the case that they can refuse to provide treatment to a person who needs treatment that the hospital cannot offer.
There are no regulations in the Health Services (Private Hospitals and Day Procedure Centres) Regulations 2013 (Vic) that says a private hospital must provide treatment to emergency patients that arrive. There is no equivalent, at least in Victoria, to the Emergency Medical Treatment & Labor Act 1986 (USA). Under that Act a hospital that operates an Emergency Department within the United States must examine a person who requests emergency care to determine if there is an emergency and must provide treatment or stabilise the person and transfer them to another hospital. But note that is limited to hospitals that operate an emergency department, not ones that do not.
The critical issue in Australia is going to be the obligation upon a medical practitioner. In Lowns v Woods (1996) AustTortsReps ¶81-376 (Kirby P and Cole JA; Mahoney JA dissenting) a doctor was found negligent for not providing emergency care when asked to assist with a patient who was nearby. The finding that there is a duty will be even easier if the doctor is at work at a hospital and the patient has been brought to that hospital. That does not mean the doctor has to provide the full range of emergency medical services, but he or she could not simply wash their hands and say ‘this is a private hospital and this patient has no insurance’.
By the same reasoning one would also argue that the hospital, particularly if it operated an emergency department, would also owe a duty to assist a person who arrived at their door seeking help, but what that duty would require would depend on all the circumstances.
The matter is made even more clear by the Good medical practice: a code of conduct for doctors in Australia (17 March 2014) published by the Medical Board of Australia. That document says (at [2.5]):
Treating patients in emergencies requires doctors to consider a range of issues, in addition to the patient’s best care. Good medical practice involves offering assistance in an emergency that takes account of your own safety, your skills, the availability of other options and the impact on any other patients under your care; and continuing to provide that assistance until your services are no longer required.
Doctors have an independent professional obligation to those that require their services that exist above and despite any edict from their employer. What follows is that if a doctor is at a private hospital and is aware that a person needs emergency assistance, that doctor is required, subject to all the considerations listed in [2.5] to offer ‘assistance … and continu[e] to provide that assistance until … no longer required’.
The assistance provided may be quite minimal and amount to not much more than first aid and calling an ambulance to have the person treated by paramedics and transferred to a public hospital, but the patient can’t be ignored. That’s true even if the hospital management say ‘we don’t provide an emergency service’.
What follows is that private hospitals must be able to refuse treatment to people. They are a private business and can determine their business model and who they accept as a patient and who they do not (subject to anti-discrimination legislation at both state and commonwealth level).
They don’t have to treat people who insist on being treated but who cannot pay for their services. For those people there is the public health network and Australia’s comprehensive health insurance scheme, Medicare.
Private hospitals don’t have to treat people who need services that they do not provide.
Although the hospitals are not compelled to provide public emergency health services, a doctor at the hospital will have professional obligations to assist at a medical emergency that occurs in the hospital so that might involve a patient, a visitor or someone who comes to the door and asks for help.
A doctor and the hospital would also have a common law duty to assist a person who needed emergency medical care at the hospital but what that might involve would be limited by all the circumstances.
If AV (Ambulance Victoria) was treating an emergency patient I fail to see why they would take a patient to a private hospital. If they did and if the hospital operated an emergency department, there would no doubt be some obligation upon the hospital and staff to provide assistance but that would not extend to having to admit the patient and provide ongoing care. It may be no more than to assist to stabilise the patient pending their transfer to a public hospital. If the hospital did not operate an emergency department even less could be expected.
If the hospital operated a public emergency unit, in particular if it had entered into an agreement with the government to provide public hospital services then it would have to accept a patient on the same terms as any public hospital and emergency health services are provided free in Australian public hospitals.