Do you have to accept an online medical certificate?


Do you have to accept an online medical certificate?

Are online medical consultations valid? This question was recently sent to our Ask an Expert service.


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Are online medical consultations and certificates valid? 
This question was recently sent to our Ask an Expert service. 
Q I have just received a medical certificate from a "tele-health" company. A NSW staff member had an online chat with a GP in Queensland who issued a medical certificate for the employee. Is this acceptable? Are online medical consultations valid? And are are medical certificates from online doctors valid? 
A There are now online businesses that provide consultations with a registered doctor. Such a practice is recognised by medical authorities. A medical certificate issued by a doctor after a remote consultation could be valid. An HR manager would need to be satisfied that an issued medical certificate is valid. 
Our comments below explain the general practice and the law. We will also explain how managers can satisfy themselves that the consultations or certificates are valid. 

Business model 

Without referring to any particular online service, these types of businesses appear to work by setting themselves up as referrers. They connect patients in one part of the country to medical practitioners based in other parts of the country. The online business itself does not itself offer a medical consultation. So, for instance, a NSW-based worker could log onto one of these online businesses and he or she could then connect with a Qld-based doctor for an online consultation.

The Health Practitioner National Law

Australian states and territories have passed regional variations of a model piece of legislation called the “Health Practitioner National Law”. 
For the sake of convenience we will now refer to these laws as “the National Law”. 

National Boards

Section 31 of the National Law sets up “National Boards” and there are 15 of them. One of boards is the Medical Board of Australia. Section 39 of the National Law gives a power to the National Boards to develop and approve codes and guidelines for medical practitioners.

Technology-based consultations

The Medical Board of Australia has published several sets of codes and guidelines. One of its codes of conduct is “Good Medical Practice",which sets out the principles that comprise good medical practice and which doctors must abide by.
The Medical Board of Australia has also published Guidelines For Technology-Based Patient Consultations
The guidelines define “technology-based patient consultations” as patient consultations that “use any form of technology, including, but not restricted to, video-conferencing, internet and telephone, as an alternative to face-to-face consultations”.
The guidelines also say that medical practitioners must follow the “Good Medical Practice” code of conduct which is “equally valid” for technology-based and face-to-face consultations. 
Medical practitioners who advise or treat patients in technology-based patient consultations should make a judgment about the appropriateness of a technology-based patient consultation and assess the patient’s condition based on the history, clinical signs and appropriate examination, the guidelines say.
In general, technology-enabled remote doctor-patient consultations are acceptable to Australian medical regulators provided the consultations meet certain standards of good medical practice.

Validity of medical certificates

If a doctor issues a medical certificate after a remote consultation with a patient, the question then arises whether the medical certificate is legally valid. That would appear to depend on the registration status of the medical practitioner in question. 
Part Seven onwards of the National Law sets up a registration scheme for medical practitioners. Offering medical services to the public without being a registered medical practitioner is forbidden. Pretending to be, and offering services as, a registered medical practitioner is a criminal offence punishable by jail and financial penalties. The National Boards decide the standards for registering as a medical practitioner and whether a given individual has met those standards.
The Australian Health Practitioner Regulation Agency (AHPRA) was also set up under the National Law. It maintains the register of medical practitioners. The registration (or lack thereof) of any given medical practitioner on the register can be verified on AHPRA’s website by any member of the public. 
Managers will need either the doctor’s first-name and surname or the medical registration number to check registration. A medical certificate will normally have a doctor’s full name printed on it and online referral businesses may supply both the name and registration number of their partner-doctors. 
HR and other managers can use the AHPRA service to check whether the doctor supplied by the referring online business is a lawfully registered medical practitioner. 

Online consultations, certificates and workplace law

We can now see how medical registration law and workplace entitlement law interacts. 
A person is entitled to take paid personal leave if he or she is not fit for work (s97 of the Fair Work Act). He or she must, under s107, provide evidence that would satisfy a reasonable person that leave was taken because he or she was not fit for work.

Reasonable evidence and medical certificates

What will be accepted as reasonable evidence will have to be decided on a case-by-case basis. 
Medical certificates are widely supplied and accepted in practice. The supply and acceptance of medical certificates as reasonable evidence has a legal footing too. For instance, the explanatory memorandum to the Fair Work Act says that “evidence commonly requested include[s] a medical certificate or [a] statutory declaration" for applications for personal leave.
Although the explanatory memoranda doesn't have the force of law, there have been many cases in courts and tribunals in which the validity of a given medical certificate has been discussed. For instance, the case of Sulis v Woolworths [2009] revolved around a computer-printed medical certificate that had been manually altered.  So it is clear that courts and tribunals, have in the past, accepted that medical certificates can be reasonable evidence of a worker being unfit to present for work. 
But not just anyone can issue a medical certificate to sign an employee off work. Section 12 of the Fair Work Act defines a "medical certificate" as a certificate signed by a medical practitioner. That same section then defines a "medical practitioner” as a “person registered… as a medical practitioner under a law of a state or territory”. 
Then there’s the content of medical certificates. According to the Australian Medical Association Guidelines on Medical Certificates (2011; Revised 2016)the usual requirements for the contents of a medical certificate are that it displays: 
  • the name and address of the doctor issuing the certificate
  • the name of the patient
  • the date on which the examination took place
  • the date on which the certificate was issued
  • the date(s) on which the patient is or was unfit for attendance.
A diagnosis is not required and the certificate should be legible and written in a way that a non-medical person can understand it.

So are online medical certificates valid or not?

Employers will have to consider the apparent nature and duration of an illness or condition for which a worker is claiming paid personal leave and the nature of the documentation supplied. 
If the doctor supplied by the online referral service is a registered medical practitioner under the appropriate local version of the National Law then a medical certificate that he or she issues is probably a legally-valid medical certificate.
If a legal medical certificate is supplied to an employer that (a) does not appear to have been tampered with and (b) contains the information from the Guidelines on Medical Certificates, then it would very likely be regarded as evidence that should satisfy a reasonable person that the worker took personal leave because he/she was unfit for work owing to illness or injury. 
Bear in mind that, in the absence of tampering, there could still be circumstances in which medical certificates issued after a remote consultation still might not be reasonable evidence. If an employee was signed off work for a long time then it would be reasonable for an employer to ask for more information. And, as noted above, there is a requirement on doctors to consider the “appropriateness of a technology-based consultation” in relation to the patient’s condition. Doctors may be limited in their ability to assess certain conditions without being able to physically examine the patient. And, while a diagnosis is not normally required on a certificate, an employer can ask for more evidence if the condition is such that a reasonable person would conclude it is not a condition that could be diagnosed via a single remote consultation.
Assume a worker says that he or she was sick for a few days, but is OK now. He or she presents a certificate that says the employee was unfit for work for those few days. The certificate has the appropriate details and appears to be free from alterations or tampering. Assume further that the certificate has been also been issued by a legally registered medical practitioner. Then it would appear that such a certificate would likely be evidence that would satisfy a reasonable person that paid personal leave was taken because the worker was not fit for work. And that would be so irrespective of whether the certificate was issued after an in-person or technology-enabled medical consultation.

Possible consequences for failing to accept

Assume that an HR or other manager declined to accept a legally valid medical certificate and had altered the position of the employee to the employee’s prejudice (e.g. disciplined, demoted, reduced hours etc.). It could be argued that such an action was an “adverse action” under s 340 of the Fair Work Act. An employer is not allowed to take adverse action against an employee because he or she exercised a workplace right, such as taking paid personal leave when he or she is unfit for work. In such circumstances it would be arguable that the employee could have a legal claim against the employer. 
If an employee was actually dismissed by an employer there could be a potential adverse action claim, but it could also be argued the dismissal was for an invalid reason. It is possible that an employee could argue that he or she was unfairly dismissed.
An employer or HR manager who declined to accept a legally valid medical certificate, and who then took action against an employee, could have difficulties defending those decisions before a court or tribunal if there was a subsequent lawsuit. 
The bottom line: Online businesses are now popping up on the internet that connect patients and doctors for an online consultation. This is a practice that appears to be recognised by medical authorities. These doctors may issue a medical certificate. The validity of the certificate will depend on the certificate being in a tamper-free state and also upon the registration status of the issuing-doctor. The registration status can be verified by employers by using the service provided by the AHPRA website. 
An employer who takes disciplinary action against an employee who produces a valid medical certificate covering a period of paid personal leave, regardless of whether the certificate was obtained remotely or face-to-face, could experience difficulties defending that decision if challenged by an aggrieved employee in a court or tribunal. 

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