Language barriers, informed consent and interpreters in medical care
16th Aug 2018
As a multicultural society, Australia hosts a rich variety of cultures, languages, religions and ethnicities. The 2016 census figures confirm our extraordinarily diverse cultural and linguistic composition. Around 18 million of the 24 million Australian residents speak English. However, there are 820,000 Australian residents who described their English proficiency as ‘poor’, and a further 193,000 who are not proficient in English. Across the country, 16% of the population does not speak English at all or well and in Sydney, Melbourne and Adelaide this proportion is closer to 18%.
This article highlights the pitfalls that occur when patients and healthcare providers are unable to understand each other due to language barriers, and what can and should be done in such situations to facilitate effective communication.
A seemingly obvious solution to the difficulties presented by language barriers is the use of an interpreter. Unfortunately, the assumption that all interpreters are equally skilled, and that by engaging an interpreter informed consent can be presumed, is incorrect.
Potential pitfalls with interpreters
It is imperative that an interpreter is a ‘competent interpreter’ who is accredited by appropriate governing bodies. A high level of bilingualism, while an essential quality of a competent interpreter, does not by itself ensure the ability to interpret. A competent interpreter is knowledgeable on issues related to ethics, standards of practice, confidentiality and the role of the interpreter, as well as having proficiency in English and the non-English language, including knowledge of specialised medical terminology in both languages.
It could amount to negligence when a family member is used as an interpreter for serious medical procedures. This is because family members, friends and especially minor children are often not competent interpreters; they do not always interpret accurately and are prone to omissions, additions, substitutions and volunteered answers.
Further, an interpreter who is a family member might have an agenda that is in opposition to the patient’s needs or desires. For instance a patient might not want to go ahead with a termination, or may not want to undergo an invasive procedure, but the husband or adult children who are interpreting might want a different outcome and use their role as the interpreter to manipulate the situation. In the case of child interpreters, they are unlikely to understand complex medical terminology or fully comprehend what is happening in more ‘adult’ situations and are therefore often unable to interpret the required information to an acceptable standard.
It is further important that the interpreter who is appointed speaks the dialect of the patient. In some circumstances dialects vary, particularly when the language is not widely spoken. For instance, if a person identifies as Chinese, they may speak Cantonese, Mandarin or any of the other dialects. This variation in dialects can cause issues. For example, a patient that is Somalian but speaks some conversational pidgin Arabic might be paired with an Arabic speaker as an interpreter. The healthcare provider assumes it has discharged its obligation by engaging an interpreter who speaks the same language as the patient, but the patient and interpreter cannot understand each other due to differences in dialect.
Cultural sensitivities between genders and warring ethnic groups should also be borne in mind where practicable when engaging an interpreter. The cultural bias of the interpreter may influence the way in which information is relayed between interpreter and patient, or a patient may be uncomfortable with the use of an interpreter from a particular region or background, thereby losing the effectiveness of the information being conveyed.
Where possible, if the elements of a medical procedure are verbally translated into the patient’s language the same information should also be provided in their language in writing. It is important for the patient to be able to walk away with information to digest (this could include an educational video in the patient’s language if available). It is also critical that the individual is asked to repeat what has been explained to them in their own words, and that they are encouraged to ask questions.
It is additionally important that the healthcare provider has a strong understanding of what the patient wishes to communicate. If the healthcare provider does not have a full and clear understanding of the patient’s medical situation, the provider's diagnosis, treatment and management of the patient’s case is redundant and likely to be incorrect. Clear and competent interpretation is essential to ensure the best outcome for a patient.
Some of the pitfalls highlighted above were explored in a report commissioned by the University of California, Berkley, School of Public Health, entitled, ‘The high costs of language barriers in medical malpractice’. In the de-identified case, referred to in the report as the ‘Rivera lawsuit’:
‘The parents of the patient in the Rivera lawsuit spoke only Spanish, but the orthopedist did not. Their 4-year-old son lost the use of his right arm when he broke his right elbow jumping on a moon bounce and suffered a blocked artery, resulting in arm fatigue and risk of gangrene…The patient chart did not document the use of any interpreter to secure informed consent for the first surgical procedure, a reduction of the fracture. However, the medical chart noted that a family member was used to interpret the discussion of the next surgical procedure for removal of pins, as well as for the surgery to remove some of the muscle tissue to relieve the pressure in the arm…The hospital and surgeon did not use interpreters for other key communications during the series of medical encounters, and they provided no Spanish translation of the informed consent forms. The Carrier paid the patient $650,000 in damages and paid legal fees in excess of $80,000.27’.
Lack of informed consent becomes a live issue when language barriers are present. The duty to ensure that a patient understands his/her care is paramount in a patient and healthcare provider relationship. Obtaining informed consent is a legal requirement. Rogers v Whitaker highlights that when obtaining a patient’s consent to undertake various therapeutic actions, medical practitioners have a duty to provide the patient with sufficient information about the material risks of a procedure or treatment to enable the patient to make an informed decision about whether to undergo the procedure or treatment. It further explains that the information provided must be relevant to the patient’s individual circumstances. It is not enough to go through the mechanics of providing the patient information; the healthcare provider must ensure that the patient understands that information, otherwise consent cannot be assumed.
Failure of communication due to language barriers might lead to criticisms of substandard care, which could amount to negligence. Failure to show that a patient understood the medical information or consented to the medical surgery can lead to aggravated damages due to battery and be grounds for a finding of negligence, namely the failure to receive informed consent and/or the failure to warn, to name a few. It also contributes to mistrust and a breakdown in the relationship between the healthcare provider and patient.
The importance of overcoming language barriers must not be overlooked by healthcare providers. Clear communication is central to an effective relationship between a patient and medical professional, and is the prelude to the provision of competent medical care and treatment.
Olamide Kowalik is a Senior Lawyer at Revolution Law. She was admitted in 2003 and practises in the areas of medical negligence, motor vehicle accidents, WorkCover and public liability. She has been recognised by Doyles Guide as a Leading Medical Negligence Compensation Lawyer in Qld in 2015 and 2017. She is a member of the ALA, Women’s Legal Association of Qld, Qld Medico-Legal Society and is on the board of Triumph Alliance, a non-for profit organisation. She is married and with 3 boys, including a set of twins, who keep her active!
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
 B Salt, ‘The curious nature of non-English speaking clusters in our cities’, The Australian (online), 12 August 2017,
 For a definition of ‘language barrier’ see
 National Council on Interpreting in Health Care, FAQ – Translators and Interpreters,
 National Health Law Program, The high costs of language barriers in medical malpractice (2010) 3,
 See, for example, G Flores et al, ‘Errors in medical interpretation and their potential clinical consequences in pediatric encounters’, Pediatrics, Vol. 111, No. 1, January 2003; J McQuillan and L Tse, ‘Child language brokering in linguistic minority communities: Effects on cultural interaction, cognition, and literacy, language and education’, Vol. 9, No. 3, 1995, 195-215. See also, ‘Why relying on family members, friends and children as interpreters is dangerous and should be discouraged’, available at
 See above note 4.