Translation is at best an echo

A recent decision of the NSW Court of Appeal considers issues of consent and the use of interpreters in circumstances where medical advice is conveyed to non-English speaking patients.

The plaintiff, a Macedonian speaker with a poor grasp of English, underwent an operation to remove an acoustic neuroma, a tumour on the sheath of an acoustic nerve. The operation was performed following a total of four consultations with the doctors. On the first two occasions the plaintiff’s friend was present and facilitated the discussion between the doctor and the plaintiff. On the two latter occasions an accredited interpreter was present. In the course of the operation an adjoining facial nerve was severed which resulted in her suffering facial palsy.

The District Court dismissed the plaintiff’s complaint of intra-operative negligence but upheld the allegation of failure to warn. The defendants (the doctor and hospital) appealed this decision.

Although it was clear that there was a misunderstanding on the part of the plaintiff (she was told that she had a non-malignant tumour near the brain, however, the plaintiff understood that she had been told she had a tumour in her brain which required surgical excision), the Court of Appeal held that the misunderstanding of information did not amount to a breach of duty of care.

The trial judge set out 16 substantial paragraphs of the form of the protocol to be followed in order to comply with the duty to convey relevant information. The Court of Appeal held that the highly prescriptive and detailed standards identified by the trial judge were duly onerous and went far beyond the scope of the relevant duty to take reasonable care in warning of the material risks of the procedure. The Court of Appeal stated that the duty of care owed by the medical practitioner to a patient with a language barrier involves no more than taking reasonable care to ensure that the material risks are conveyed to the plaintiff and that the practitioner is satisfied that the substance of the information conveyed has been understood.

This case highlights the need when dealing with non-English speaking patients for practitioners to ensure that the patient understands the substance of the information provided to them. The best chance of ensuring that this occurs is by the use of an accredited interpreter. If an interpreter cannot attend in person then access to an accredited interpreter via the phone service should be considered. Such measures aim to safe-guard against the risk of failing to ensure that the material risks are conveyed to and understood by the patient.

Post by Monica Pecker and Karen Kumar 

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