Non-English speaking patients and informed consent

Non-English speaking patients and informed consent

For most of us, understanding medical jargon, even with the help of 'Google Doctor' is hard enough. Imagine how much harder it would be if English was not your native language!

Often family or friends might be there to help but, in the case of agreeing to medical treatment proposed by a doctor, how sure can we be that the condition or procedure is really understood and how significant is that in determining legal rights?

This is a risky area for doctors and patients alike. One area of litigation is where someone brings a claim against a medical practitioner saying that they didn't understand and therefore didn't consent to the proposed treatment. If then, the outcome from the treatment is not good or different from what someone expected, can that person bring a claim?

This question has been explored in a New South Wales case in the context of a lady who underwent treatment for a tumour. Her treatment involved surgery, which ultimately severed a nerve causing injury. She alleged both that the treatment provided was below the appropriate standard of care, and also that she was not given enough information to enable her decision to be made and therefore her consent was not informed. Interpreters and family members had been present with her to translate at various appointments.

At trial, the judge indeed found that she had not been provided with enough information to make her decision and that there had been a failure to warn her of the risks. This decision was appealed successfully in favour of the doctor.

It is important to understand when considering such cases that a medical practitioner will be found to have exercised reasonable care if they ensure that a patient understands the material risks of the treatment - that is, they understand the substance of the information. They do not need to understand every risk and indeed, this is probably so with all patients.

It appears, however, that the Court is putting some responsibility back on the patient to ensure they understand the procedure and risks. This avoids placing additional responsibility on the doctor simply because someone is a non-English speaker. Considering this, good practice for non English speaking patients would be engage an accredited interpreter.

Every case needs to be assessed on its merits. If you wish to have your case assessed by one of our Medical Negligence experts, call (03) 9321 9988.

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