Delivering Healthcare to Patients - Essay Example

Delivering health care to patients who do not speak English Introduction: UK is increasingly growing into a multi cultural, multi racial society Downing et al, in their discussion of various models used in health care interpretation have articulated the basic necessity for fluency in language as a communication tool1. They point out that language proficiency and communication is essential between provider and patient in order to ensure that health care is successfully provided. It is only when there is clear and correct communication between a health care provider and the patient that the former can make accurate clinical diagnoses and the latter can be made aware of exactly what his/her medical condition is with the care that can be provided and will thus have the option to freely consent to, or refuse treatment on the basis of complete information. The language barrier can be a significant detrimental factor for patients because it can decrease access to and adequacy of health care due to the inability to communicate symptoms effectively, especially when they are brought into the emergency department and the use of language interpreters can significantly reduce the obstacles that are created through the inability of provider-patient to communicate effectively (Woloshin et al 1995:724-28). A study conducted by Hampers et al (1999) in the United States specifically examined the barriers cast by language and the inability of patients and their families to speak English when receiving health care in the emergency department, in order to determine whether there was any difference in diagnostic testing and length of stay. As a result, the practitioners were required to assess health care and make clinical diagnoses without the facility of a full or complete history due to the language barrier between health providers and patients. Moreover, this study showed that such patients were also less likely to be insured when they arrived for emergency services and the hampering of diagnostic and testing resulted in higher costs per patient and longer lengths of stay in the emergency departments. Similarly, a research report was prepared by Shah and Priestley (2001) which examined the experiences of black and minority disabled patients in Leeds hospitals. This report highlighted some of the specific concerns of Asian and black disabled patients and the obstructions to their health care that resulted from the lack of sensitivity of health care providers to language, religious and cultural issues. This report also showed that most minority patients who were older did not know English and the function of interpretation when they arrived at the hospital was carried out by younger family members, nurses or clerical staff from minority groups. However, Putsch (1985:3344-48) has discussed the limitations of use of such ad hoc interpreters, highlighting the need for skilled interpreters in order to adequately address health care concerns. Translation and interpretation by family members also posed an area of concern for some participants in the Leeds study because of the probability of younger members, even children, sometimes providing an inaccurate interpretation of specific medical or health care advice (Shah and Priestley 2001:48). Privacy was also an issue with some patients, especially when there were health issues they wished to discuss with their health care provider without disclosing the same to their family members. Therefore, the availability of skilled and expert interpretation services was deemed to be inadequate, especially when cultural sensitivity and understanding was absent. Cultural sensitivity: Beltran Avery has discussed the multi faceted role of the skilled person who functions as a language translater/interpreter (Beltran Avery 2001). She points out that the role of the interpreter cannot be restricted to a strict linguistic translation. A language is the outward expression of a particular culture and different cultures utilize different symbols and words to communicate, so that only a native or a very fluent person would be able to understand the cultural underpinnings that drive the outward speech and the underlying true meanings of the words. In the health care context, a health care interpreter cannot function merely as a conduit for messages. The health care interpreter is assumed to have a good knowledge of the cultural context within which the patient operates and also have a good knowledge of the culture of medicine, which may not be available to the patient. Therefore, a sensitivity to both cultural issues as well as precision in understanding and communicating medical terminology are vital in an interpreter. This ensures that a patient is able to understand the actual intended meaning of the message that is being conveyed. For example, the Leeds study (Shah and Priestley 2001) demonstrated the lack of cultural sensitivity in the kinds of meals that were prepared, which violated many of the religious and cultural beliefs of the patients – such as Asians needing vegetarian food and Muslims who are allowed to eat only halal meat. The patients pointed out that the availability of printed menu options in several languages was unlikely to be helpful to the really needy patients, since those incapable of understanding English were unlikely to be able to read in their native languages. Therefore, it becomes all the more necessary to ensure that clear and effective communication takes place through the facility of a skilled interpreter who is also a health professional. Another issue that was pointed out was the automatic assumption among health providers that minority communities live in extended families, therefore patients were discharged earlier than they should have been. The lack of cultural sensitivity thus hinders the quality of care and in some cases could also be inadvisable from a health point of view, such as too early discharges of patients without ensuring adequate after care. The quality of health care requires Informed consent: The question of informed consent is based upon the principle of respect for persons and respect for their autonomy in decision making about their own healthcare. This also includes those persons who may be said to enjoy diminished autonomy, such as patients with mental illnesses. Those who are unable to speak English are similarly restricted in decision making autonomy because they are not able to fully comprehend the risks of potential treatments that are proposed before they sign consent forms. In the United States, general guidelines have been laid for the presenting of consent information to patients in a language they understand (primarily Spanish), and this information can also be presented orally through an interpreter who is fluent in both languages (Guidance Memorandum 1995) However, Jacobs et al (2001) point out the limitations in this approach when trained translators are not used, since a family member who comes forward to translate may not be able to fully comprehend or effectively translate the consent information, while patients do not have the opportunity to read the detailed consent information that has been orally transmitted to them and affix their signature with full awareness of what they are signing.10 Similar findings were reported by Putsch (1985). This also supports the findings in the Leeds study that demonstrated a similar need for professional interpreters who are also sensitive to cultural issues as far as Asians and black minority patients are concerned. Alagiakrishnan and Chopra (n.d) have pointed out how Asian women may be more comfortable with female health providers. Moreover, these patients are also raised to be passive and may therefore accept the health provider’s verdict without question, while it is largely the male members who may make the health care decisions on behalf of the women. Their culture also teaches to be stoic about pain, thus making a health provider’s diagnosis more difficult. There are certain cultural symbols, such as the marriage thread women wear around their necks (mangalsutra) which should not be removed during a medical examination. The interpreter must therefore be sensitive to such cultural beliefs and practices in order to understand the patients and serve their health needs better. Ethical issues: As pointed out by Austen et al (2005), trust is central in the relationship between patient and health care provider. There is a high level of dependence of the patient upon the health provider, therefore a duty of care is implied from a professional provider of services. (Hedley Byrne v Heller). The case of Hedley Byrne clearly imputed liability for misstatements, even as it spelt out the duty of a professional provider of services, as follows: A reasonable man, knowing that he was being trusted or that his skill and judgment were being relied upon, would I think, have three courses open to him. He could keep silent or decline to give the information or advice sought, or he could give an answer with a clear qualification that he accepted no responsibility for it….or he could simply answer without any such qualification. If he chooses to adopt the last course, he must, I think, be held to have accepted some responsibility….”(Hedley Byrne v Heller: 580) The role of the interpreter is vital because the failure to accurately transmit information and ensure that the patient is able to comprehend the information within his or he cultural context, will be akin to misstatements and since the patient who does not speak English relies upon the professional healthcare provider, the duty of care is established. Although the case of Hedley Byrne which established the duty of care was in specific reference to financial advice, the principle established in this case was later extended to all professionals in the case of White v Jones. The Bolam test, set out in the case of Bolam v Friern Hospital Management Committee, also imputes a higher level of professional liability and standard of care that is expected from a person such as a doctor or professional nurse who professes themselves the best in their field of expertise. For example, in assessing whether there has been a breach of duty of care (www.davidevans-law.co.uk), if there is a likelihood that harm will occur, the health care provider will be expected to take more precautions1 and this may include the question of making a full scale effort to ensure that consent for risky medical procedures that is obtained from a patient is a fully informed consent. It was held in the case of Dunne v Nat Maternity Hospital that a deviation from a general practice would not necessarily constitute negligence, it can only be a breach of duty if no other professional would have done so in the circumstances. Moreover, in the case of Sidaway v Bethem Royal Hospital Governors the court rejected the claim for damages from a patient for injuries sustained after an operation, on the basis that the Bolam principle should not apply to the issue of informed consent and that elaborate explanations of side effects were not necessary. This highlights the importance of the role of the translator, because the question of whether or not there is actual informed consent or informed choice will depend to a great extent upon whether or not the patient has correctly understood the actual intended meaning behind the information communicated in consent forms. According to Stirrat and Gill (2005:129), “properly informed choice and consent are very important in medical ethics.” When a patient makes health decisions on the basis of informed consent, the liability for any adverse effects arising out of health care will not be attributed to the health care provider. Therefore, this places a duty upon the health care interpreter to ensure that patients who do not understand English are able to communicate their symptoms effectively, receive appropriate treatment and understand the risks, if any, associated with such treatments. The impact of EU legislation: Subsequent to the incorporation of the individual freedoms guaranteed under the European Convention of Human Rights into national law through the Human Rights Act of 19982, the question of informed consent has become even more vital, especially where some form of experimental treatment is being administered. When a patient does not fully comprehend the implications of such treatment, there could be legal cause for action against the health care provider on the basis of being subjected to inhuman treatment (Herczegalfy v Austria) contrary to Article 3 of the Convention (D v UK). This is especially relevant because through application of Article 8(1) of the Convention, a patient has the right to refuse such treatment3. On the basis of the above, the role of the skilled health care interpreters is a crucial one, since they serve as the bridge between patients and providers, to ensure that informed consent is obtained, especially in situations such as refusal of treatment which involve ethical issues. For example, a pregnant woman who does not speak English may opt to refuse treatment or be uncaring of the fact that her behavior is harmful to the fetus (Adams et al 2003:40) however if the woman has not been made fully aware of negative consequences, this could impute liability upon those providers. A great deal of controversy and criticism has been generated where courts have tried to override a patient’s autonomy in making health care decisions. In the case of Dolan B, Parker C, Bewley S, Whitfield A, Bastian H, Conroy C. Tameside and Glossop Acute Services Trust v CH (a patient) there was a conflict between the ethical duty as perceived by the doctors to save the fetus which was in a critical situation against the mother’s express wishes and the right to perform a forcible caesarean was granted by the Court under the Mental Health Act. A patient who is deemed to be mentally competent in terms of understanding the consequences of his/her health decisions, has the right to refuse to accept treatment, either because she may doubt the benefits of the treatment or may consider the risks involved to be too great to accept. Therefore a health provider can only go so far as to attempt to convince the patient of the benefits of treatment but cannot interfere with the autonomy of the patient and the right to refuse treatment (Airedale trust v Bland). However, where the language barrier exists, or where an interpreter fails to translate correctly, it could hinder the availability of complete knowledge to the patient and his/her capacity to make an informed decision. Article 8 of the ECHR guarantees the individual right of privacy, therefore this places a legal and ethical duty upon an interpreter never to disclose confidential health information about a patient or divulge information he/she may have gleaned about the medical records of patients through the translation function. However, this provision also means that individuals will have the right of access to files that may contain their personal medical records (Gaskin v UK). But any breach of privacy of the patient by a health provider could be actionable in law as medical malpractice. (Jackson 2006). Health care decisions are personal issues, therefore a healthcare interpreter may need to exercise special care to transmit the information accurately but an attempt to influence or manipulate the patient’s decision could be construed as an invasion of privacy under the law. Similarly, Article 9 of the ECHR also supports the upholding of personal religious convictions, therefore in matters such a blood transfusions for example, decisions of the patients to refuse such procedures on religious grounds may have to be honored, even when the withholding of such treatment could lead to death. However, in all these situations, when dealing with patients who do not speak English, it becomes the interpreter’s duty to ensure complete comprehension of that the patient, to elicit an informed consent that does not violate any of the patient’s rights. Austen et al (2005) have also discussed several issues in healthcare which involve complex health care decisions that evoke the individual autonomy of the patient, such as genetics and mental disability, apart from issues such as forced caesareans mentioned above. Article 14 is especially important in the context of healthcare because it prevents discrimination against individuals, therefore blanket assumptions about a particular minority group, such as Asians or blacks as identified in the Leeds study (Shah and Priestley 2001) could rise in contravention of the statutes. All health care decisions that impact upon the human rights individuals will need to be carefully considered for the legitimacy to interfere with such rights. No fault compensation systems are being increasingly mooted in the case of medical accidents as opposed to tort. The law of tort requires that a claimant for damages must prove the harm that has been done and also prove that the harm has been caused through a breach of the duty of care. Alternative measures that have been suggested include alternative dispute resolution, structured payouts instead of large lump sum payments as well as receiving long term care for the damages that have been caused. (DOH 2001). In the years following legal intervention to facilitate forced caesareans, the courts have been forced to examine the legality of such procedures, especially in the case of patients detained under Section 2 of the Mental Health Act, where the detainment and compulsory delivery is purportedly made for the health of the woman and the fetus (Dyer 1997:8) One woman was awarded compensation in the amount of 7000 pounds for a caesarean section performed against her express wishes (Knowsley and Reid 1997). Although neither the mother nor the baby was physically injured in any way, the compensation was made for “assault against the person and medical negligence.”(Knowlsley and Reid 1997). Therefore, interfere with individual patient autonomy could result in legal consequences, which the health care provider must protect against by ensuring the patient’s complete comprehension in extracting the informed consent. Conclusions: In the context of the above, the significance of the health care interpreter’s role is in ensuring meaningful communication between patient and provider. The personal nature of health care decisions gives rise to ethical issues as outlined above, wherein the conflict between the provider’s duty to save life and the personal autonomy of the patient may sometimes be in conflict. In view of the weight that has been accorded to human rights legislation in the UK and the provision of the individual freedoms guaranteed under the ECHR, a health provider cannot impose a medical procedure upon a patient without specific consent. The language interpreter’s role therefore becomes vital, in ensuring that such information is fully and clearly transmitted to the patient, since it is the basis upon which the patient will make health care decisions about whether to accept or refuse treatment. In this process of communication, the interpreter needs to be sensitive to the cultural context in which non English speaking patients operate, since this could play a significant role in their decisions. Such knowledge would also be of invaluable assistance to the health care provider in ensuring that a higher quality of care is provided and that the duty of care is not infringed at any time. Bibliography * Adams, SF, Mahowald, MB and Gallagher, J, 2003. “Refusal of treatment during pregnancy.” Clinical Perinatology , 30 (127): 40 * Alagiakrishnan, Kannayiram and Chopra, Anita. “Health and health care of Asian Indian American elders. [online] available at: www.stanford.edu/group/ethnoger/asianindian.html * Austen, Garwood-Gowers, Tingle, John and Wheat, Kay, 2005. “Ethical Practice: Contemporary issues in health care law and ethics.” Elsevier. * Beltran Avery, Maria-Paz, 2001. “The role of the health care interpreter: An evolving dialogure” NCIHC Working Paper [online] available at: http://www.ncihc.org/NCIHC_PDF/TheRoleoftheHealthCareInterpreterAnEvolvingDialogueApril2001.pdf * Breach of duty of care [Online] Available at: http://www.davidevans-law.co.uk/clinical_negligence.htm * Department of Health, 2001. Clinical negligencewhat are the issues and options for reform? London: Stationery Office. * Downing, Bruce and Roat, Cynthia, E. “Models for the provision of language access in health care settings” [online] available at: http://www.ncihc.org/NCIHC_PDF/ ModelsfortheProvisionofLanguageAccessinHealthCareSettings.pdf * Dyer, Clare, 1997. “Court to examine legality of compulsory caesarean sections.” British Medical Journal, 314 (7073): 8 * Guidance Memorandum, 1995.Obtaining and Documenting Informed Consent of Subjects Who Do Not Speak English. Office of Protection from Research Risk, Division of Human Subjects Protections Washington. [online] available at: http://ohrp.osophs.dhhs.gov/humansubjects/guidance/ic-non-e.htm * Jacobs, Elizabeth, Alvarado, Wilma and Hardt, Eric, 2001. “Recommendations for the ethical involvement of limited English speakers in research.” [online] available at: http://www.ncihc.org/NCIHC_ODF/RecommendationsforEthicalInvolvementofLimitedEnglishSpeakersinResearch.pdf * Jackson, Emily, 2006. Medical law: Text, cases and materials Oxford University Press * Knowsley, Jo and Reid, Tim, 1997. “Payout for woman who was forced to have a caesarean” Electronic Telegraph, 737, dated June 1, 1997. * Hampers, Louis C, Cha, Susie, Gutglass, David J, Binns, Helen J and Krug, Steven E, 1999. “Language barriers and resource utilization in a pediatric emergency department.” Pediatrics, 103 (6) * Putsch, RW, 1985. “Cross cultural communication: the special case of interpreters in health care.” Journal of the American Medical Association, 254: 3344-3348 * Shah, Sonali and Priestly, Mark, 2001. “Better services: Better Health: the healthcare experiences of black and minority ethnic disabled people” [online] available at: http://www.leeds.ac.uk/disability-studies/projects/healthcare/LIPfinalreport.pdf * Stirrat, G.M. and Gill, R, 2005. “Autonomy in medical ethics after O’Neill” Journal of medical Ethics” 31: 127-130 at pp 129 * Woloshin, S, Bicknell, NA, Schwartz, LM, Gany, F, Welch G, 1995. “Language barriers in medicine in the United States” Journal of the American Medical Association, 273: 724-728 Cases: * Airedale trust v Bland (1993) AC 789 * Bolam v Friern Hospital management Committee (1975) 1 WLR 583 * D-v-UK [1997] 24 EHRR 423 * Dolan B, Parker C, Bewley S, Whitfield A, Bastian H, Conroy C. Tameside and Glossop Acute Services Trust v CH (a patient) [1996] 1 FLR 762. * Dunne v National Maternity Hospital (1989) IR 1 * Hedley Byrne v Heller (1963) 2 All ER 575 * Herczegalfy v Austria (1992) 15 EHHR 437 * Kelly v Gov of St. Laurence’s Hospital (1988) IR 402; (1989) ILRM 437 * Mrs B (2002) 2 All ER 449, * Sidaway v Bethem Royal Hospital Governors (1985) AC 871 * Walsh v Family Planning Services Ltd (1992) 1 IR 496 * White and Another v Jones and Another (1995) 2 AC 207 Read More