Obtaining consent from non-English speaking patients
Date: October 5, 2016
George v Biggs [2015] NSWDC 11
Key Points
- Sandra George underwent a procedure to remove a right sided acoustic neuroma (tumour) during which an adjoining facial nerve was severed which resulted in Ms George suffering from facial palsy.
- Ms George has a limited grasp of the English language and required interpreting assistance at each of the pre-operative consultations.
- Ms George commenced proceedings in the District Court of New South Wales alleging (among other things) that the procedure was performed negligently and that she was not provided with adequate information prior to giving her consent.
- The trial Judge found Ms George was successful in establishing that there had been a failure to warn her of the risks.
- The decision was appealed, and it was found that the medical practitioners involved in Ms George’s care had taken reasonable care in ensuring she was provided with, and had understood, the relevant information about the risks of the procedure.
Background
Sandra George is an elderly Macedonian speaker with a limited grasp of the English language. In 2009, she began to suffer from worsening hearing impairment and associated issues.
It was found that Ms George had a right sided acoustic neuroma (tumour) of the vestibular nerve. Following four consultations, Ms George underwent a procedure to remove the tumour.
The procedure was performed following consultations during which Ms George had been assisted by interpreters. At the first two consultations, a friend acted as an interpreter for Ms George. At the second two consultations, Ms George was assisted by an accredited interpreter.
During the course of the procedure, an adjoining facial nerve was severed which resulted in Ms George suffering from irreparable facial palsy.
In 2012, Ms George commenced proceedings against the surgeon, Nigel Biggs and St Vincent’s Hospital Sydney seeking damages in negligence. Ms George’s position was that she was provided with inadequate information pre-operatively and prior to giving her consent to the procedure, and that the damage to her facial nerve occurred as a result of the negligence of Dr Biggs.
The trial Judge found the patient was not successful in relation to her allegation that there had been negligent performance of the surgery, however, the patient was successful in establishing that there had been a failure to warn her of the risks and was awarded $331,000.
The hospital and Dr Biggs appealed the decision.
Findings
The Court of Appeal allowed the appeal and set aside the judgment in favour of Ms George. It was found (among other things) that:
- the medical practitioners involved in Ms George’s care had taken reasonable care in ensuring she was provided with, and had understood, the relevant information about the material risks of the procedure;
- Ms George’s was operating under the mistaken understanding that she had a brain tumour and that this misunderstanding lead her to opt for surgical intervention; and
- Ms George’s misunderstanding was not due to any breach of duty on the part of the medical practitioners.
Perhaps most importantly, the Court of Appeal rejected the argument that practitioners must take additional steps to ensure a patient understands, or that the patient understands an interpreter. The Court of Appeal clarified the content of the duty of care owed by a practitioner to a patient with limited grasp of the English Language. The Court of Appeal held that the duty is to take reasonable care to ensure that the material risks relating to a surgical procedure are conveyed, and that the practitioners satisfy themselves that the substance of the information has been conveyed and been understood.
Conclusion
This decision should act as a reminder to practitioners that not only do they have a duty to ensure that patients are adequately advised of the risks of treatment and alternative treatment options, but they must also convey the information in a manner in which the patient can understand. Where a patient has a limited grasp of the English language, an accredited interpreter should be used in order to ensure that the substance of the information has been conveyed and been understood.
Contact: