If a doctor starts treating a patient they have to do so in regards to the current state of science (lege artis). According to Art 49 para 1 ÄrzteG a doctor is obligated to treat every patient whether ill or healthy the same way irrespective to their person. Yet this only applies if the doctor agrees to take over treatment which normally happens in accordance with accepting the treatment contract according to civil law.
However neither doctors nor patients are obliged to enter into such a contract. A doctor is usually allowed to refuse treatment without giving reasons. But there are some exceptions as follows:
- First exception is an imminent danger to a person’s life. A doctor must not refuse first aid that is needed. Public health institutions are even earlier under obligation to administer first aid even if there is no sign of a danger to life. Irrefutable persons have to receive treatment if they are in danger of an otherwise unavoidable health damage. Obligation of treatment exists for pregnant women imminent to their childbirth and mentally ill people who fulfil the requirements of hospitalisation. (Art 22 para 4 KAKuG) (Art 22 (4) of the health institution and sanatorium law)
- If doctors are in a monopoly position due to being the only person in their discipline in a larger area they are under obligation to enter the contract.
- A rejection must not be based on discrimination. If people are excluded from public health service due to their ethnical backgrounds or due to “being different” it is possible that this is a direct discrimination according to the principal of equality. Even if there is seemingly neutral criteria not to treat a patient it is possible that it is still an indirect discrimination except the excuses are justified by a legal reason and are necessary for achieving it. Discrimination based on sexual identity and ethnicity concerning supply and access to publicly available goods and services is prohibited in any case.
E.G. The General practitioner “M” has a sign on his door that states: “No treatment for refugees”. This is an act of discrimination. “M” must not exclude a whole group of people from treatment based on their ethnicity.
- One must also keep contract obligations towards the health insurance companies in mind. If doctors have a contract with a health insurance company they are obliged to conclude a treatment contract with the beneficiary of that health insurance company (Individual contract as preliminary contract). Yet the entire contract includes a limit in justified cases concerning the obligation to treatment. The cause for such cases can either come from doctor or patient.
- Reasons for refusal on doctor’s behalf can be:
- Medical reasons: e.g. there is no equipment available that would be needed or if the patient demands a treatment that is not indicated.
- Capacity reasons: Doctors in contract with a health insurance company cannot reject a treatment simply because they want to work less or because the treatment would cost a lot of time. But reaching their full capacity can be a reason for refusal.
- Lack of communication possibilities: If doctors and patients don’t find a language they have in common rejection is possible. Rejection is even obligatory if a doctor cannot treat a patient accurately enough due to communication problems. In such a case the doctor is obligated to clarify that the patient must look for another doctor. If it is foreseeable that other doctors will have the same communication problem one must not send the patient away but treat them as otherwise this patient runs the risk of not being treated at all. If a doctor suspects that the patient will not reach another doctor to whom he can talk to in the period of time in which treatment is necessary then the doctor is obliged to start treatment as medical treatment without communication is generally considered better than none at all. Due to a decision of the Supreme Court of Judicature (OGH) it is concluded that it is not possible for public health institutions to refuse treatment because of communication barriers if a person is apparently in urgent need of treatment.
E.G. Asylum seeker “A” comes to your practice. As you don’t speak the same language you don’t know why “A” came. Your colleague in the next village uses video translators so you give “A” the address and make him understand that he should go there. This approach is not discriminating as you do not exclude a whole group from treatment but rather hand over the treatment because of insurmountable language barriers.
- No remuneration for treatment: If doctors know that the insurance company will likely not pay for treatment although it is indicated (e.g. injection) they must offer patients following options: the patients pay for their treatment by their own hand as private patients or doctors refuse to treat them and assign them to other doctors who are willing to treat the patients within the limits of their entitlement to benefits as defined by the insurance companies. Doctors are obligated to inform patients about costs resulting from treatment. In the law for dentists it is explicitly said that one must do so. (Art 18 para 1 clause 5 ZÄG) But also other doctors do have that information obligation.
Reasons for refusal on patient’s behalf can be:
- Patient is refusing co-operation obligation: e.g. patient refuses to comply with treatment, does not allow examination, or does not show up to appointments. Whether the patient’s behaviour is adequate must be determined by objective measures. In case that patients for example suffer from psychological illnesses this must be taken into account. Doctors with contracts with insurance companies who are in a monopoly like position must not use such strict measures.