It is likely that the environment will change with amendment Orders from the Ministry of Health that amend requirements or correct errors – as relevant changes come to our attention we will endeavour to keep pace with them and provide updates and relevant information.
We have received many questions regarding the Protection Framework Order that came into effect at 11.59, 2 December 2021. Below are some frequently asked questions and our responses.
Am I allowed to ask a patient’s vaccination status?
In short, we do not consider that it would be unlawful for a physiotherapist to ask for a patient’s vaccination status.
The COVID-19 Public Health Response (Protection Framework) Order 2021 prevents a business or service in control of ‘designated premises’ from denying a person, other than a worker, entry to the premises on vaccination grounds. It also prevents a business or service in control of ‘designated premises’ from denying a person, other than a worker, access to those goods or services on vaccination grounds.
However, we do not interpret the Order as preventing physiotherapists from asking about the vaccination status of persons who are seeking access to health services. Put simply, clause 31 and 32 prohibit the denial of access or services, but they do not prohibit questions asking for vaccination information.
In our view, obtaining information about the vaccination status of persons in their premises will continue to be an important part of health providers meeting their health and safety obligations, and different measures (e.g., additional PPE) may be warranted when providing services to unvaccinated persons. Therefore, you may request a patient’s vaccination status for reasons such as part of a health and safety screening to determine the most appropriate way of delivering health services to patients who may be unvaccinated.
Note: You must not ask a patient their vaccination status and then use that information as the reason to deny them access to designated premises or access to services at designated premises – that would be unlawful.
Good reasons for which vaccination status may be requested might include:
As part of an overall health and safety assessment for at-risk physiotherapists, which could result in offering the patient the services they require an alternative physiotherapist or other health professional
In order to allocate suitable times for unvaccinated patients receiving services to protect the health and safety of at-risk patients who may attend the designated premises.
Can I offer telehealth to unvaccinated patients as an alternative?
As stated above, the Order prevents a business or service in control of ‘designated premises’ from denying a person, other than a worker, entry to the premises on vaccination grounds. It also prevents a business or service in control of ‘designated premises’ from denying a person, other than a worker, access to those goods or services on vaccination grounds.
This means if physiotherapists see patients for in-person appointments at designated premises, they must make these services available to both vaccinated and unvaccinated patients. You cannot triage patients to telehealth based on their vaccination status, if in-person services are required to meet their health needs. To do so would be to deny them access to health services.
Telehealth is still a recommended option for some patient groups, for example those who have reported any concerning answers (other than vaccination status) on a COVID-19 screening assessment e.g., signs and symptoms of COVID-19, recent close contact with a COVID-19 case etc. In those cases the denial of service would not be based on vaccination grounds.
At my clinic I see mainly private clients and only a few ACC clients – is my clinic ‘designated premises’?
Yes, the definition of ‘designated premises’ includes: “…premises of health services that are partly or wholly funded by—
the Ministry of Health:
Oranga Tamariki—Ministry for Children:
the Ministry of Social Development:
the Department of Corrections:
a district health board:
Veterans’ Affairs New Zealand:
the Accident Compensation Corporation:”
Therefore, premises of physiotherapy services that have any ACC clients, or clients funded by any of the above agencies will be considered ‘designated premises’. Premises of health services that are not funded by any of the agencies listed in clause 10 are not ‘designated premises’.
As part of my work, I see both ACC and private patients in their homes – are these homes ‘designated premises’?
Where the services provided at the patient’s home are not funded by any of the public agencies listed in clause 10, the patient’s home is unlikely to be “premises of health services” under the definition of ‘designated premises’.
Furthermore, even if the patient’s home is considered “designated premises” (e.g., because the health services provided at the home are funded by ACC) the physiotherapist providing the service would not be “a business or service in control of designated premises” under clause 32. It follows that physiotherapists could refuse treatment of unvaccinated patients at the patient’s homes if they do so in accordance with principle 4.5 of the Code of Ethics and Professional Conduct.
I have a close contact business within our physiotherapy service. They share the same waiting room. What are the rules for them and their clients accessing our premises?
If you are a business or service in control of designated premises, you will be able to continue to operate at all levels of the Protection Framework as long as the requirements of the Order are met (contact tracing including scanning etc.)
If non-health services are located within your designated premises, they will need to operate under the framework as it applies to their services (close contact business etc.). Depending on how the framework applies to their services, they may only be able to see vaccinated clients.
The requirement to comply with different rules for different business co-located in the same premises may cause some challenges if both vaccinated and unvaccinated clients waiting to access services share waiting rooms, bathrooms or other facilities.
We understand that MBIE has advised that business should take all practicable steps to ensure separation of physiotherapy clients from the “non-health business” clients.
We offer classes within our physiotherapy service. What are the requirements around having vaccinated and non-vaccinated clients in the same class?
The term ‘health service’ is very broadly defined as: ‘a service provided for the purpose of assessing, improving, protecting, or managing the physical or mental health of individuals or groups of individuals’ s. 5(1) HPCAA (2003). This includes one to one, group rehabilitation and exercise classes, pool sessions etc. In our view, the term ‘health service’ is likely to include most, if not all, of the services that physiotherapists provide.
Whether the person delivering the class in ‘designated premises’ is a physiotherapist or not, participants in the class cannot be denied access on the grounds of vaccination status.
I already have collected vaccine certificates – can I still keep that information?
Vaccine certificates are personal information. You may collect personal information for a lawful purpose connected with an activity of your business where the collection of the information is necessary for that purpose. However, you must not keep that information for longer than is required for the purposes for which the information may lawfully be used.
Therefore, you may keep records of vaccination certificates to avoid making repeated requests of patients for this information where there is a valid reason to collect the information, (e.g., in accordance with your risk assessment and risk management plans). However, you must dispose of this information when vaccination grounds are no longer relevant to the delivery of services to those patients.
As I am now seeing vaccinated and unvaccinated patients, I am beginning to use more PPE. I am a private service. Am I expected to fund this myself?
Yes. While some services such as DHBs, educational facilities, private hospitals and aged care facilities are able to provide staff with PPE, to our knowledge there is no provision for Government/DHB funding of PPE for private businesses.
This document provides a brief summary of the current rules as we understand them. It is likely that these rules will change with amendment Orders from the Ministry of Health that amend requirements or correct errors. You should refer to the Order at the link provided above and consult the Ministry of Health for more detailed information.
Please note that the advice we provide is general in nature and is not a substitute for legal advice. You should seek advice from a lawyer should you wish to understand how the rules apply to your specific circumstances.