Make sure they understand: consent must overcome language barrier

Language and cultural barriers to obtaining informed consent must be overcome, for the sake of the patient and the worker.

Obtaining a patient’s consent before providing treatment and care is a fundamental duty for nurses. In obtaining a valid consent, the patient must be provided with sufficient information to make an informed decision. Difficulties can arise when cultural or language barriers exist that make communications and understanding problematic. A recent case and subsequent appeal examined this issue.

In November 2009, a Macedonian-speaking patient with a poor grasp of English underwent an operation to remove an acoustic neuroma – a tumour on the sheath of her acoustic nerve. The operation carried a significant risk of the injury that eventuated. During the course of the operation, an adjoining facial nerve was severed, which resulted in her suffering from facial palsy. Prior to the operation, the patient was consulted on four occasions. On the first two, a friend translated for her in discussions with the surgeon and on the latter two, she was provided with an accredited interpreter by the hospital/health service. Even so, the patient alleged negligence.

The patient sued the surgeon for negligence in relation to the injury. The second limb of the patient’s case was the allegation that there had been a negligent failure to appropriately and adequately inform and provide her with an understanding of material information as to the risks associated with the operation. The patient alleged that had she been advised of the risks, including the one which did eventuate, she would not have consented to the procedure.

On the issue of ensuring a patient understands, the trial court extensively outlined the steps required to be undertaken when communicating with a non-English speaking patient.

The clinician needs to:

• Understand the patient’s level of communication.
• Take time to establish rapport with the patient.
• Assess the patient’s ability to comprehend oral communications.
• Assess how to achieve effective feedback from the patient.
• Create a process of obtaining information from the patient.
• Provide a patient with opportunities to clarify/ask questions.
• Convey and/or condense important information for the patient.
• Ascertain the patient’s understanding of information conveyed.
• Revise the last two steps to ensure a patient’s understanding.
• Summarise the information and the patient’s understanding.
• Ascertain the patient’s wishes, expectations and concerns.
• Provide opportunities for patient questions and clarifications.
• Relate the patient’s wishes and expectations to any clinical possibilities.
• Reach a common understanding between clinician and patient.
• Record the facts and details of common understandings.
• Make arrangements consistent with the agreed treatment.

As can be seen by the above checklist, the process is quite exhaustive and comprehensive.

At trail, judgement was entered in favour of the patient. On the question of a breach of a duty to properly provide enough information and in a manner understandable to the patient, the surgeon and health services were in breach. They were found not to have ensured that the patient understood enough information so as to be able to provide a valid consent. The court awarded the patient $331,000 in damages.

The surgeon and health service appealed the decision.

The issues for determination on appeal were whether:

• The duty of care in warning a patient of a surgical procedure’s risks (where effective communication relied on translation) was correctly articulated at trial, if not, the scope of the obligation.
• Whether in the circumstances adequate warnings as to risk had been provided to the patient.
• The failure in communication materially affected the patient’s decision to have the operation (that is, would the patient have had the operation, even if she had been adequately informed of the risks).

The appellate court consisting of three judges overturned the trial judge’s decision and found that the evidence did not support the patient’s assertion that she did not understand the risks involved in the operation due to her poor understanding of English and that the processes of translation had added to this. The trial judge’s 16-point checklist of obtaining an informed and valid consent was not specifically overturned.

The appellate judges stripped back the 16-point checklist. The court unanimously stated the law (generically) in such situations, as:

“A correct statement of the content of the duty of care owed by a [health] practitioner to a patient with a language barrier, is that [health] practitioners take reasonable care to ensure that the material risks attending a surgical procedure are conveyed, and that the practitioners satisfy themselves that the substance of the information has been conveyed and been understood.”

What is clear is that nurses communicating with non-English speaking patients need to ensure that the patients understand the information being imparted. Obviously, this may mean using any or all of the 16 steps as outlined in the original judgement. These rulings illustrate that nurses should use great care, even if using the services of an interpreter. In such situations, the nurse still needs to satisfy themselves that the patient understands.

Scott Trueman is a lecturer in the School of Nursing, Midwifery and Nutrition at James Cook University.

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