Lost in translation: ad hoc interpreter use
George v Biggs
Australia is one of the most culturally and linguistically diverse nations in the world, with over 300 languages spoken collectively (1). Delivery of healthcare in this context therefore requires effective and appropriate
use of interpreter and translator services. Patients need to be able to actively engage with their care and treatment (2).
A recent NSW case, George v Biggs (3), provides an interesting discussion at first instance regarding the role of the doctor in obtaining informed consent, and how the need for an interpreter affects this process. Ms George brought an action in negligence against her doctors for failing to warn her of the risk of facial nerve palsy in the removal of an acoustic neuroma. The patient had required and requested, but had not always had access to, a professional Macedonian interpreter. An accompanying friend had therefore interpreted for her at times. Ms George developed two salient misunderstandings during these consultations; that the tumour was malignant and that it was in the brainstem. The trial judge held that more probably than not, the patient’s language difficulties would have been apparent to the medical staff, and had the very real potential to give rise to fundamental misunderstandings. The trial judge specifically identified that non-professional interpreters not only carried the risk of translational error as a result of undetermined proficiency, but there is also the potential to filter or play down what has been said, altering, censoring or diluting the message to be conveyed in clinical communications, and in some instances, subtly altering the content of the communications on account of perceived sensitivities, sensibilities or cultural factor. These communication errors are well reflected in the literature (4). It was therefore held that use of an ‘unskilled interpreter’ therefore had inherent scope to permit or create room for inaccuracy of communications that may later affect the validity of the consent, even where a professional interpreter had been used for the formal consenting process (5). At first instance the plaintiff therefore succeeded in her action and was awarded around $330,000 in damages. The case was overturned on appeal this year (6), predominantly on grounds of causation; the patient was unable to show that she wouldn’t have proceeded with the surgery but for these misunderstandings. The Court of Appeal also found error in the factual findings of the trial judge that the doctors had made no attempt to warn the patient of the material risk in question. The Court of Appeal decision limits the additional responsibility that may have been created by the trial judge in relation to consent involving an interpreter. It rejects the suggestion that a doctor must take special steps to ensure a patients’ understanding in this context or that it is the doctors’ responsibility to ensure that the patient understands the interpreter. The Court of Appeal was silent on the consequences of ad hoc interpreter use, as compared with accredited interpreter use, and the trial judge’s comments suggesting an inherent increased risk of miscommunication. These findings suggest that the frequent use of non-professional interpreters in both public and private clinical practice may give rise to inherent liability, and should be avoided. Existing guidelines may therefore require revision.
An interpreter works with the spoken word or signed language (Auslan). Differently, a translator examines the written word, translating written messages from one language to another. In Australia, a ‘qualified’ or ‘accredited’ language interpreter is a professional interpreter qualified by the National Accreditation Authority for Translators and Interpreters (NAATI). NAATI is the national standards and accreditation body in Australia that accredits professional interpreters. To work as an interpreter in health, NAATI requires an individual is accredited as a ‘Professional Interpreter or Professional Translator’ – formerly known as level 3 - or higher (7). Qualification at this level requires both an English proficiency assessment, as well as a proficiency assessment in the relevant second language. There are currently 48 languages that can be accredited by NAATI at the level of professional interpreter (8). There are, however, languages that are not accredited by NAATI. For these languages NAATI offers ‘recognition’ as an interpreter. Recognition is an acknowledgement that at the time of the award the candidate had recent and regular experience as a translator and/or interpreter, but no level of proficiency is specified. These interpreters must satisfy three criteria; proficiency in English, completion of a short training course, and proof of work experience as an interpreter/translator. Lastly, a non-professional interpreter includes anyone who acts as an interpreter and is not accredited by NAATI. Family members, friends, doctors, nurses, medical students, and even cleaning staff, have been known to act as interpreters for patients. In the public setting, hospitals fund a variety of services, including telephone, video relay, onsite interpreting, as well as written translation services. In the private setting, the National TIS offers phone interpreting to any doctor delivering Medicare-rebateable services. TIS has a Doctor’s Priority Line that is available 24 hours a day, seven days a week and is linked to 1500 interpreters speaking 160 languages (9)
Risk of content translation errors
All communication has the inherent risk of information not being sent or received correctly, otherwise, miscommunication. The courts have recognised that an interpreter does not perform a mechanical task of converting the words of one language into another; that different languages do not necessarily possess equivalent linguistic expression. In the case of Perera v MIMA (10), the court held that interpretation will be sufficiently accurate when the interpreter expresses in the other language, as accurately as the language and circumstances permit, the idea or concept that has been expressed. Therefore, a proficiency-assessed interpreter carries a lower risk of translation-based communication error when compared with a non-assessed interpreter (2). It is worth noting that accuracy appears independent of the experience or the skillset of the interpreter. There is also still potential for other language or dialect incompatibilities. In George v Biggs, the court specifically identified the various types of miscommunication that can occur with non-professional interpreters, as reflected in the literature (4). This risk of miscommunication, along with the potential for distress, makes it inappropriate to use children as interpreters (4). While not impervious to this kind of error, both recognised and professional interpreters have both experience and training in objective interpretation, and resisting the filtration of information. In addition, it is estimated that over 20% of Australian clinical consultations occur in a language other than English (11). A bilingual doctor or health practitioner may appear a valid alternative, with the benefit of insight, objectivity and confidentiality, but is not without risk of miscommunication. A bilingual doctor’s language proficiency is unlikely to have been formally assessed. A number of studies, including a systematic review (2), have assessed the error rate of professional and non-professional interpreters, including doctors and other clinical staff, and uniformly, the error rate has been higher in the non-professional interpreter group. Bilingual doctors that regularly undertake consultations in a language other than English may consider undertaking the NAATI accreditation to have their own proficiency formally and independently assessed.
Risk of breach of confidentiality
Non-professional interpreters may not be aware of the importance of confidentiality, or that their involvement may in itself constitute a breach where informed consent has not been appropriately obtained. Conversely, accredited and recognised interpreters work to a code of ethics which includes the requirement of confidentiality (12). Concerns regarding confidentiality have also been raised where a small number of professional interpreters are available to a community (13). In this setting, phone interpreting may be beneficial due to the anonymity of the interpreter. While a patient may appear sufficiently competent to decide who they wish to share their medical information with, this question is often asked in front of or via the relevant family member or friend, and in a language which the patient is not proficient. Patients from other language backgrounds can be viewed as inherently vulnerable in the healthcare system, and caution is recommended.
The Medical Board of Australia has adopted the Australian Medical Council’s Good medical practice: a code of conduct for doctors in Australia (14), which clearly makes reference to the need for appropriate interpreting services in achieving effective communication; 3.3.8 Making sure, wherever practical, that arrangements are made to meet patients’ specific language, cultural and communication needs, and being aware of how these needs affect understanding. 3.3.9 Familiarising yourself with, and using whenever necessary, qualified language interpreters or cultural interpreters to help you to meet patients’ communication needs. Criterion 1.2.3 of The Royal Australian College of General Practitioners Standards for General Practices (‘the Standards’) (15) require a ‘practice provides for the communication needs of patients who are not proficient in the primary language of our clinical team and/or who have a communication impairment'. The indicators require that the practice has a list of contact details for interpreter and other communication services, including the National Translating and Interpreting Service (TIS) and can describe how they communicate in these settings. Both the NHMRC General Guidelines for Medical Practitioners on Providing Information to Patients (2004, under review) and the Standards recommend the use of trained and accredited interpreting services in preference to non-professional interpreters, and this approach is reflected in most public hospital policies and procedures. The Standards go one step further, in expressly warning about the potential for miscommunication, confidentiality breaches and filtering of information when using friends and relatives. This latter position is preferred and should be strengthened. The only circumstances in which an ad hoc interpreter should be supported is where the patient expressly refuses an accredited interpreter, or it is not possibly to attain an accredited interpreter. The Standards recognise that patient's relatives and friends are commonly used as interpreters and condone this practice if it is an express wish of the patient and the problem is minor. This approach should be considered with caution. The discourse in George v Biggs reminds us that a communication error can occur at any point during the consultation, not just at the point where consent is sought for a procedure. Furthermore, a misunderstanding of seemingly harmless or ‘non-critical’ content could still give rise to adverse outcomes. For instance, miscommunication of appointment times or dates could foreseeably lead to loss to follow-up or delays in care.
Barriers and recommendations
Interpreter services in Australia are highly accessible to clinicians compared with those in other countries (16), yet they remain underused and frequently misunderstood (13). A survey of Australian hospitals involving patients with limited English proficiency suggested that about a third had used a professional interpreter whilst in hospital (17). The most commonly cited obstacle to interpreter use is inconvenience. Where the systems are not properly integrated, accessing an interpreter can become burdensome and difficult, or is simply perceived as such. Speaker phones are important for phone interpreting services to be time efficient and accurate, as the process of passing a phone between two or more people can be time-consuming and difficult to facilitate, as well as a potential infection risk. Many clinicians flounder in the use of phone or video conference interpreting systems due to a lack of training and practice with these modalities. The time taken to secure an interpreter may be a barrier. The TIS generally manages to provide an interpreter in under 3 minutes (13), however in hospitals where TIS isn’t the provider of choice or in circumstances involving rare languages, requiring an in-person interpreter, or at a busy time of day, it may take significantly longer. Forward planning is therefore essential in these circumstances. The Auslan Booking service is well received, but can be difficult to utilise last-minute. There are concerns that with the rollout of the NDIS (National Disability Insurance Scheme) there will be insufficient Auslan interpreters to meet the rising demand (18). TIS is free and readily accessible in the states where it is the phone interpreting service of choice, yet a survey of general practitioners showed over two-thirds had never used professional telephone interpreters (19).Misconceptions regarding interpreting services also remain. These include beliefs that TIS must be pre-booked, is not available out of hours, and bears financial cost (16). Lack of knowledge and awareness of interpreter services has been consistently correlated with incorrect beliefs and a lack of accredited interpreter use (20). This is the most commonly cited barrier and can be easily overcome with education and increased awareness of available services. Interestingly, the data suggest that clinical staff often assume patients have a preference for family or bilingual staff, over professional interpreting services (16). A telephone survey of low English proficiency patients did show that 48% preferred to use relatives as interpreters (17). Ultimately, patient preference should be considered alongside the risks associated with non-professional interpreter use. Doctors may assume that patients are responsible for arranging appropriate interpreting services. It is clear from the guidelines referenced above, and from a legal perspective, that it is the doctor’s responsibility to ensure adequate communication, including the use of interpreter services where appropriate. Further promotion of this responsibility may be beneficial. Phone interpreting may be appealing for convenience, but may be inappropriate or simply inadequate in others. For example, extensive use of diagrams and pictures in explanations of a complex procedure may render phone services inadequate. Video-conferencing based interpreting may be of benefit in these consultations. In the public system, interpreting services can place significant financial burden on health services, particularly if the language is out-sourced to contractors. Cost is still a barrier to use in the private setting as many doctors are unaware that TIS is free (13). Again, education and awareness is essential. Lastly, indigenous language support has lagged behind services for migrant Australians, and there is currently no national system akin to TIS for Indigenous Australians (13). An interpreting service for indigenous Australians needs to be considered if the health needs of the first peoples of Australia are to be best met.
In conclusion, there is clear consensus that the use of an accredited interpreter is best practice. The use of an unaccredited interpreter carries inherent potential for miscommunication and risks breaches of confidentiality. Existing guidelines should be strengthened to deter clinicians from using unaccredited interpreters, including for translation of seemingly minor content, and warn of the risks inherent in ad hoc interpreting. More work is needed to improve awareness of interpreting services available, better integrate the systems within health services, and train medical students and doctors to be competent, efficient and comfortable with the different interpreting modalities.
Dr Jessica Dean, Junior Doctor, Monash Health
Prof Erwin Loh, Chief Medical Officer, Monash Health & Clinical Professor, Monash University
Ms Katherine Lorenz, Chief Legal Officer, Monash Health & Senior Lecturer, Monash UniversityReferences:1. 2011 Census shows Asian languages on the rise in Australian households [internet]. Canberra. Australian Bureau of Statistics. 2012 [cited 2016 Oct 6]. Available from: http://www.abs.gov.au/websitedbs/censushome.nsf/home/CO-60.2. Karliner LS, Jacobs EA, Chen AH, Mutha S. Do professional interpreters improve clinical care for patients with limited English proficiency? A systematic review of the literature. Health services research. 2007; 42(2): 727-54.3. George v Biggs  NSWDC 11.4. Flores G, Laws MB, Mayo SJ, Zuckerman B, Abreu M, Medina L, et al. Errors in medical interpretation and their potential clinical consequences in pediatric encounters. Pediatrics. 2003; 111(1): 6-14.5. George v Biggs  NSWDC 11 at para  - .6. Biggs v George  NSWCA 1137. Outline of NAATI credentials [internet]. National Accreditation Authority for Translators and Interpreters. 2015 [cited 2016 Oct 6]. Available from: https://www.naati.com.au/PDF/Misc/Outliness%20of%20NAATI%20Credentials.pdf.8. NAATI Recognition Information Booklet [internet]. National Accreditation Authority for Translators and Interpreters; 2015 [cited 2016 Oct 6]. Available from: https://www.naati.com.au/PDF/Booklets/NAATI_Recognition_booklet.pdf.9. Free Interpreting Service [internet]. Canberra. Australian Government Department of Social Services. 2016 [cited 2016 Oct 6]. Available from: https://www.dss.gov.au/our-responsibilities/settlement-and-multicultural-affairs/programs-policy/settle-in-australia/help-with-english/free-interpreting-service.10. Perera v Minister for Immigration & Multicultural Affairs  FCA 50711. Britt h MG, Charles J, et al. General practice activity in Australia 2007-8 [internet]. Canberra: Australian Institute of Health and Welfare. 2008 [cited 2016 Oct 6]. Available from: http://www.aihw.gov.au/publication-detail/?id=644246815412. AUSIT Code of Ethics [internet]. Australian Institute of Interpreters and Translators. 2012 [cited 2016 Oct 6]. Available from: http://ausit.org/AUSIT/About/Ethics___Conduct/Code_of_Ethics/AUSIT/About/Code_of_Ethics.aspx.13. Phillips C. Using interpreters: a guide for GPs. Australian Family Physician. 2010; 39(4): 188.14. Good medical practice: a code of conduct for doctors in Australia [internet]. Australian Medical Council. 2009 [cited 2016 Oct 6]. Available from: www.goodmedicalpractice.org.au.15. Standards for general practices. 4th Edition. The Royal Australian college of General Practitioners. Melbourne: 2010 [cited 2016 Oct 6]. Available from: http://www.racgp.org.au/your-practice/standards/standards4thedition/16. Huang Y-T, Phillips C. Telephone interpreters in general practice: bridging the barriers to their use. Australian Family Physician. 2009;38(6):443.17. Garrett PW, Forero R, Dickson HG, Whelan AK. How are language barriers bridged in acute hospital care? The tale of two methods of data collection. Australian Health Review. 2008;32(4):755-64.18. Jackson L. Auslan Language Services and the NDIS[internet]. The Deaf Society. 2015 [cited 2016 Oct 6]. Available from: http://deafsocietynsw.org.au/documents/documentsNDIS_and_Interpreting_Paper.pdf19. Atkin N. Getting the message across: Professional interpreters in general practice. Australian Family Physician. 2008;37(3):174.20. Heaney C, Moreham S. Use of interpreter services in a metropolitan healthcare system. Australian Health Review. 2002;25(3):38-45.
Last Updated on Wednesday, 12 April 2017 16:49