When interpreter is family member
Business Dilemmas
Dr Ellie Mein
The importance of interpreters during the consent process are discussed here by Dr Ellie Mein.
Dilemma 1
Do I proceed with this interpreter?
Q I am working in the private sector and have concerns about a patient who has been added to my list for elective surgery.
When reviewing the patient’s records, I noted that the patient spoke no English and that their daughter had been acting as an interpreter for outpatient appointments and for the consent process so far.
This is concerning to me, as the patient has multiple comorbidities, is at high risk of complications from the procedure and the outcome is uncertain.
Given these various obstacles to successful surgery, I feel that it is important to have clear and open lines of communication when obtaining consent from the patient.
I did mention having an independent translator present rather than relying on a family member, but when I discussed this with a colleague, they stated that this was unnecessary. How should I proceed?
A The GMC does not specifically comment on the use of relatives as interpreters, but in its guidance Decision-making and consent it states that ‘you should use an interpreter or translation service if they have difficulty understanding spoken English’.
But it says you should also ‘accommodate a patient’s wishes if they would like anyone else – a relative, partner, friend, carer or advocate – to be involved in discussions and/or help them make decisions’ with regards to their care.
NHS England does, however, address this specific issue. In Guidance for commissioners: Interpreting and Translation Services in Primary Care (2018), it states: ‘6. Patients should always be offered a registered interpreter. Reliance on family, friends or unqualified interpreters is strongly discouraged and would not be considered good practice.
‘7. If a patient expressly desires a family member or friend to act as their “interpreter”, the patient should give informed consent in their own language, sought from them independently of the family member/ friend. The consent must be noted in the patient’s record.’
Although this guidance is aimed at primary care and is not applicable to the private sector, it is good practice to use a suitably qualified and independent interpreter rather than a relative.
Without an independent interpreter, there is no assurance of quality and accurate translation of complex medical terminology, and relatives, through no fault of their own, may filter or omit key points to save the patient distress or to steer the patient into making a decision the relative feels is best for them.
Confidentiality issue
Additionally, there is also a confidentiality issue when using relatives and not checking via an independent interpreter what information the patient would want their family member to know.
The patient may subsequently feel uncomfortable asking questions via their relative, especially for conditions of a sensitive nature.
Finally, you should be aware of the safeguarding aspects of minors being used as interpreters – for example, exposure to inappropriate information and missing school.
It is important to remember that in the event of an adverse outcome or complaint, you would need to be able to justify why you had relied on the relative being a translator if there was time to arrange an alternative, professional option for an elective case.
This question would be particularly pertinent for a patient at high risk of a complications when the need for meaningful dialogue would be even greater to satisfy the requirements for appropriate consent.
Dr Ellie Mein is a medico-legal adviser at the Medical Defence Union
I have been called to an ‘Article 2’ inquest
Dr Kathryn Leask
Dr Kathryn Leask explains what an Article 2 inquest is and how to prepare for one.
Dilemma 2
What is involved in this inquest?
Q I am a consultant surgeon who has been asked to attend an inquest. The inquest relates to the death of a patient I operated on who was detained under the Mental Health Act.
Concerns have been raised about the delay in the mental health team and social services seeking medical advice when the patient first presented with symptoms.
I have been told by the coroner’s office that it is an Article 2 inquest, but I wasn’t sure what this meant and what the relevance of it was. At this stage, I have been asked to provide a statement and keep certain dates free in case I am asked to attend the inquest.
Can you explain more?
A Article 2 inquests are enhanced inquests and are held where there is a possibility that the state has failed to protect a person from risk or if there has been a death in custody.
The State has an obligation to take steps to safeguard the life of vulnerable people and the coroner may be interested in what action was taken before medical assistance was sought.
An Article 2 inquest can take place if the deceased was detained in a prison or under the care of social services or healthcare professionals. Where such an enhanced inquest takes place, there is likely to be a jury sitting with the coroner.
Institutional failure
In addition to the usual investigation a coroner would undertake, they will consider the wider circumstances surrounding the death – for example, was the death caused by any systemic or institutional failures within the organisation where the patient was detained.
Once the coroner has all the information they need, they will decide who is required to give oral evidence. This may be as a witness to fact or as an ‘interested person’ (IP). An IP is a person or organisation, such as a hospital trust, who may be of particular interest to the coroner.
The IP will be entitled to copies of all the documents the coroner will be relying on and to be legally represented.
It is important that your report is a factual account of your involvement in the patient’s care based on the medical records and, if appropriate, your recollection of events.
Also it is recommended that doctors seek advice from their medical defence organisation early if they are asked to provide evidence, in writing or verbally, to the coroner and consideration be made as to whether the doctor requires legal representation if they are an IP or whether IP status should be requested.
Where an unexpected death has occurred and therefore referred to the coroner, it is also important to reflect on the care that was provided to the patient to see whether there are any lessons to learn and whether any action needs to be taken as a result of the death.
Under regulation 28 of The Coroners (Investigations) Regulations 2013, the coroner can issue a ‘Prevention of Future Death’ report if they have heard evidence that further avoidable deaths could happen if preventative action isn’t taken.
Where healthcare professionals have carried out their own review of the care and made changes, if necessary, the coroner may feel that this is not necessary, as any concerns have already been addressed.
Dr Kathryn Leask is a medico-legal adviser at the Medical Defence Union