Sally Bean, JD, MA Ethicist & Policy AdvisorSunnybrook Health Sciences Centre & University of Toronto, Joint Centre for BioethicsHIN Education EventMay 23, 2013

Exploring  the Legal & Ethical Dimensions of Patient Requests for ad hoc Interpreters

IntroductionIntroduction Illustrative CaseIllustrative Case Key Issues/QuestionsKey Issues/Questions Health Care Consent Act Health Care Consent Act & &

Personal Health Information Protection Personal Health Information Protection ActAct

Exploring Arguments Exploring Arguments for & againstfor & against

Management of RequestsManagement of Requests

Revisit Illustrative CaseRevisit Illustrative Case

Roadmap: Roadmap:

Patient sustains a horrific acquired brain injury in a motor Patient sustains a horrific acquired brain injury in a motor vehicle accidentvehicle accident

Patient is non-communicative and deemed incapable at this Patient is non-communicative and deemed incapable at this time so patient’s spouse is the patient’s Substitute Decision time so patient’s spouse is the patient’s Substitute Decision Maker (SDM)Maker (SDM)

The wife has limited English proficiencyThe wife has limited English proficiency After identifying that the patient and wife are Albanian, a F2F After identifying that the patient and wife are Albanian, a F2F

interpreter is booked to update the wife on the patients status interpreter is booked to update the wife on the patients status and propose a care plan moving forward. and propose a care plan moving forward.

The wife becomes very agitated when the interpreter explains The wife becomes very agitated when the interpreter explains why she is there and her role. why she is there and her role.

Wife insists that her husband was a very private man and Wife insists that her husband was a very private man and would not want strangers involved in his personal affairs. would not want strangers involved in his personal affairs. Therefore, she would like her adult bilingual daughter to Therefore, she would like her adult bilingual daughter to interpret for her. interpret for her.

The wife asks that the interpreter leave the room. The wife asks that the interpreter leave the room. Both the interpreter and staff are caught off guard by the Both the interpreter and staff are caught off guard by the

reaction and do not know how to respond. reaction and do not know how to respond.

Illustrative CaseIllustrative Case

LEP Somalian refugee sought obstetrical careLEP Somalian refugee sought obstetrical care Following birth of child, developed an infectionFollowing birth of child, developed an infection Patient was accompanied by a family friend Patient was accompanied by a family friend

who interpreted for the patientwho interpreted for the patient There was no word for sterilization in the There was no word for sterilization in the

Somali language and the word was translated Somali language and the word was translated as “clean.”as “clean.”

Patient subsequently received an inappropriate Patient subsequently received an inappropriate tubal ligation and sued for negligencetubal ligation and sued for negligence

Patient won and was awarded $80K in damages Patient won and was awarded $80K in damages because physician “failed to take reasonable because physician “failed to take reasonable care to obtain patient’s consent.” care to obtain patient’s consent.”

Adan v. Davis Adan v. Davis (1998):(1998):

Ad Hoc Ad Hoc Interpreter:Interpreter:

Bilingual family members or Bilingual family members or friends, untrained bilingual stafffriends, untrained bilingual staff

Definition: Definition:

In the rare instance where a patient or family member refuses In the rare instance where a patient or family member refuses the use of a professional medical interpreter in favor of an the use of a professional medical interpreter in favor of an ad ad hochoc interpreter such as a family member or friend: interpreter such as a family member or friend:

How should we respond to these requests? How should we respond to these requests? Should institutional policies address this concern? Should institutional policies address this concern? What are reasonable accommodations? What are reasonable accommodations? Is informed consent waivable or subject to limitations? Is informed consent waivable or subject to limitations? From a healthcare provider perspective, what constitutes From a healthcare provider perspective, what constitutes

“reasonable care to obtain informed consent”?“reasonable care to obtain informed consent”? Does it matter if it is a capable patient or a substitute decision-Does it matter if it is a capable patient or a substitute decision-

maker requesting use of an ad hoc interpreter?maker requesting use of an ad hoc interpreter? Should patient safety, liability & professionalism trump privacy Should patient safety, liability & professionalism trump privacy

& cultural accommodation concerns?& cultural accommodation concerns? Given the privacy implications, can/should we force an LEP Given the privacy implications, can/should we force an LEP

patient to use a professional interpreter? patient to use a professional interpreter?

Key Issues/Questions: Key Issues/Questions:

Should we:Should we:

discourage;discourage; prohibit;prohibit; conditionally permit (with conditionally permit (with

restrictions/stipulations);restrictions/stipulations); permit (i.e. unrestricted)permit (i.e. unrestricted)

Patients or substitute decision makers to Patients or substitute decision makers to decline the use of professional medical decline the use of professional medical interpreters in favor of an interpreters in favor of an ad hoc ad hoc interpreter, interpreter, e.g. family member, friend or staff member? e.g. family member, friend or staff member?

Overarching Policy & Practice Overarching Policy & Practice Question: Question:

Types of Interpretation & Corresponding Potential Types of Interpretation & Corresponding Potential for Usefor Use

Type of Interpreter

Average Availability

Professional-ism

Comfort to Patients

Interpreting Quality

Appropriate Circumstances

Trained Onsite Interpreter

Varied High Moderate-high

High All

Trained OPI

High Moderate-high

Moderate High All

Bilingual HCP

Varied Moderate- high

High Moderate-high

All

Trained bilingual staff

Low-Moderate

Moderate-high

Moderate Moderate-high

Moderate-high risk (depends on training)

Untrained bilingual staff

Varied Low Low-moderate

Low Low risk circumstances (as last resort)

Bilingual family member or friend

Moderate-High

Low Varied Low Low risk(as last resort)

• Low: Non-medical communications such as scheduling follow-up or making appointments for referrals; some low-risk medical encounters, such as medication refills, annual influenza vaccination, etc. • Moderate: Routine follow-up for chronic disease, patient triage • High: Consent discussions, diagnostic evaluations for new problems, end-of-life discussions

(AMA Guide to Communicating w/ LEP Patients)

Health Care Consent Act (HCCA) Health Care Consent Act (HCCA) Requirements for Valid Informed ConsentRequirements for Valid Informed Consent

1)      Capable 1)      Capable Person is Person is able to understand the information able to understand the information that is relevant that is relevant

to making a decision to making a decision AND AND able to appreciate able to appreciate the reasonably the reasonably foreseeable foreseeable consequencesconsequences of the decision. of the decision.

2)    2)        VoluntaryVoluntary Consent must be voluntary and must not have been obtained Consent must be voluntary and must not have been obtained

under duress, compulsion, fraud, or misrepresentation. under duress, compulsion, fraud, or misrepresentation.

3)     3)      Informed Informed The HCP must provide: nature & purpose of the proposed The HCP must provide: nature & purpose of the proposed

treatment, alternative courses of action, material side effects, treatment, alternative courses of action, material side effects, the risks and benefits of undergoing treatment, the likely the risks and benefits of undergoing treatment, the likely consequences of not having treatment. consequences of not having treatment.

4)      Treatment Specific4)      Treatment Specific Consent must be specific to the proposed treatment or plan of Consent must be specific to the proposed treatment or plan of

treatment.treatment.

Health Care Consent Act 1996 c.2, Sched. AHealth Care Consent Act 1996 c.2, Sched. A

““Although any particular patient may Although any particular patient may waive aside all explanations, may have no waive aside all explanations, may have no questions, and may be prepared to submit questions, and may be prepared to submit to the treatment whatever the risks may be to the treatment whatever the risks may be without any explanatory discussion, without any explanatory discussion, physicians must exercise cautious physicians must exercise cautious discretion in accepting such waivers.”discretion in accepting such waivers.” (CMPA Consent Guide for Physicians, 2006)(CMPA Consent Guide for Physicians, 2006)

This pertains to the “informed” requirement This pertains to the “informed” requirement for ICfor IC

Canadian Medical Protective Canadian Medical Protective Association (CMPA) on IC Association (CMPA) on IC Information WaiversInformation Waivers

As in the illustrative case, if it is an SDM requesting an ad hoc interpreter, clarify As in the illustrative case, if it is an SDM requesting an ad hoc interpreter, clarify the rules & requirements for acting as a SDM per PHIPA. the rules & requirements for acting as a SDM per PHIPA.

If the information is necessary for making a treatment decision, the SDM If the information is necessary for making a treatment decision, the SDM requirements for consenting to collection, use and disclosure of PHI are the requirements for consenting to collection, use and disclosure of PHI are the following: following:

Factors to consider for consent Factors to consider for consent 24.  24.  (1)  A person who consents under this Act or any other Act on behalf (1)  A person who consents under this Act or any other Act on behalf

of or in the place of an individual to a collection, use or disclosure of of or in the place of an individual to a collection, use or disclosure of personal health information by a health information custodian…shall take personal health information by a health information custodian…shall take into consideration, into consideration,

(a) the wishes, values and beliefs that,(a) the wishes, values and beliefs that, (i) if the individual is capable, the person knows the individual holds and (i) if the individual is capable, the person knows the individual holds and

believes the individual would want reflected in decisions made concerning the believes the individual would want reflected in decisions made concerning the individual’s personal health information, or individual’s personal health information, or

(ii) if the individual is incapable or deceased, the person knows the individual (ii) if the individual is incapable or deceased, the person knows the individual held when capable or alive and believes the individual would have wanted held when capable or alive and believes the individual would have wanted reflected in decisions made concerning the individual’s personal health reflected in decisions made concerning the individual’s personal health information; information;

(b) whether the benefits that the person expects from the collection, use (b) whether the benefits that the person expects from the collection, use or disclosure of the information outweigh the risk of negative or disclosure of the information outweigh the risk of negative consequences occurring as a result of the collection, use or disclosure; consequences occurring as a result of the collection, use or disclosure;

(c) whether the purpose for which the collection, use or disclosure is (c) whether the purpose for which the collection, use or disclosure is sought can be accomplished without the collection, use or disclosure; and sought can be accomplished without the collection, use or disclosure; and

(d) whether the collection, use or disclosure is necessary to satisfy any (d) whether the collection, use or disclosure is necessary to satisfy any legal obligation. 2004, c. 3, Sched. A, s. 24 (1).legal obligation. 2004, c. 3, Sched. A, s. 24 (1).

SDM Requests for SDM Requests for Ad HAd Hoc Interpretersoc Interpreters

Promotes & enables patient self-determination (i.e. Promotes & enables patient self-determination (i.e. autonomy)autonomy)

Respects a capable patient’s privacy (to decide who Respects a capable patient’s privacy (to decide who gets access to PHI)gets access to PHI)

Patient privacy and cultural accommodations trumps Patient privacy and cultural accommodations trumps patient safetypatient safety

Capable patients are allowed to make bad decisionsCapable patients are allowed to make bad decisions

Demonstrates respect & understanding of cultural & Demonstrates respect & understanding of cultural & religious diversityreligious diversity

Right to receive information (to enable IC) entails Right to receive information (to enable IC) entails corollary to waive right, i.e. right NOT to receive corollary to waive right, i.e. right NOT to receive informationinformation

Practice is not legally prohibitedPractice is not legally prohibited

Arguments for Allowing Use of Arguments for Allowing Use of Ad Hoc Ad Hoc Interpreters: Interpreters:

Patient safety & privacy concernsPatient safety & privacy concerns

Cannot ensure accuracy of information being interpretedCannot ensure accuracy of information being interpreted

Consent must be informedConsent must be informed

Patient safety, professionalism and liability concerns Patient safety, professionalism and liability concerns override patient privacy or cultural accommodationsoverride patient privacy or cultural accommodations

Due to liability risks, unfair to undermine a healthcare Due to liability risks, unfair to undermine a healthcare providers duty to facilitate informed consentproviders duty to facilitate informed consent

Self-negates autonomy (i.e. we do not further autonomy by Self-negates autonomy (i.e. we do not further autonomy by respecting an individual’s decision to limit their own respecting an individual’s decision to limit their own autonomy)autonomy)

Arguments Against Using Arguments Against Using Ad HocAd Hoc Interpreters Interpreters

Only use a professional interpreter for high risk discussions, e.g. Only use a professional interpreter for high risk discussions, e.g. informed consent, end-of-life discussions, etc. informed consent, end-of-life discussions, etc.

Have a professional medical interpreter remain in the room to Have a professional medical interpreter remain in the room to verify that interpretation is accurateverify that interpretation is accurate

Show patient/SDM professional standards (indicating Show patient/SDM professional standards (indicating confidentiality as a requirement)confidentiality as a requirement)

Have professional medical interpreter sign confidentiality Have professional medical interpreter sign confidentiality agreement in presence of patient/SDMagreement in presence of patient/SDM

If reluctance is culturally grounded, could potentially use an OPI If reluctance is culturally grounded, could potentially use an OPI vs. F2F (where appropriate)vs. F2F (where appropriate)

Have patient or substitute decision-maker sign a waiver of liability Have patient or substitute decision-maker sign a waiver of liability that they have declined the use of a professional medical that they have declined the use of a professional medical interpreter and assume the risk of any informational deficienciesinterpreter and assume the risk of any informational deficiencies

Similar to waivers used in emergency room if capable patient leaves Similar to waivers used in emergency room if capable patient leaves without being assessed or capable patient that discharges him/herself without being assessed or capable patient that discharges him/herself against medical adviceagainst medical advice

Potential Accommodations: Potential Accommodations:

Should we:Should we:

discourage;discourage; prohibit;prohibit; conditionally permit conditionally permit (with (with

restrictions/stipulations);restrictions/stipulations); permit (i.e. unrestricted)permit (i.e. unrestricted)

Patients or substitute decision makers to Patients or substitute decision makers to decline the use of professional medical decline the use of professional medical interpreters in favor of an interpreters in favor of an ad hoc ad hoc interpreter, interpreter, e.g. family member, friend or staff member? e.g. family member, friend or staff member?

Overarching Policy & Practice Overarching Policy & Practice Question: Question:

Patient sustains a horrific acquired brain injury in a motor Patient sustains a horrific acquired brain injury in a motor vehicle accidentvehicle accident

Patient is non-communicative and deemed incapable at this Patient is non-communicative and deemed incapable at this time so patient’s spouse is the patient’s Substitute Decision time so patient’s spouse is the patient’s Substitute Decision Maker (SDM)Maker (SDM)

The wife has limited English proficiencyThe wife has limited English proficiency After identifying that the patient and wife are Albanian, a F2F After identifying that the patient and wife are Albanian, a F2F

interpreter is booked to update the wife on the patients status interpreter is booked to update the wife on the patients status and propose a care plan moving forward. and propose a care plan moving forward.

The wife becomes very agitated when the interpreter explains The wife becomes very agitated when the interpreter explains why she is there and her role. why she is there and her role.

Wife insists that her husband was a very private man and Wife insists that her husband was a very private man and would not want strangers involved in his personal affairs. would not want strangers involved in his personal affairs. Therefore, she would like her adult bilingual daughter to Therefore, she would like her adult bilingual daughter to interpret for her. interpret for her.

The wife asks that the interpreter leave the room. The wife asks that the interpreter leave the room. Both the interpreter and staff are caught off guard by the Both the interpreter and staff are caught off guard by the

reaction and do not know how to respond. reaction and do not know how to respond.

Revisiting Illustrative CaseRevisiting Illustrative Case

Because request is being made by a SDM, further Because request is being made by a SDM, further explore what wife means by “husband was a private explore what wife means by “husband was a private person.”person.”

Can she provide concrete examples or illustrations? Can she provide concrete examples or illustrations?

Review legislative requirements outlined in PHIPA and Review legislative requirements outlined in PHIPA and use it to discuss further with wife. use it to discuss further with wife.

In light of what will be discussed in meeting, consider In light of what will be discussed in meeting, consider what accommodations may be appropriatewhat accommodations may be appropriate

Given that the main concern seems to be privacy & Given that the main concern seems to be privacy & confidentiality, noting the professional requirement for confidentiality, noting the professional requirement for confidentiality may be helpfulconfidentiality may be helpful

Case Analysis: Case Analysis:

It is undisputable that using a professional medical interpreter is best practice It is undisputable that using a professional medical interpreter is best practice to facilitate safe and high quality healthcare to LEP patients and should be the to facilitate safe and high quality healthcare to LEP patients and should be the default practicedefault practice

It is the exception that patients or their SDMs do not want a professional It is the exception that patients or their SDMs do not want a professional medical interpretermedical interpreter

Managing these requests is a balancing act between patient wishes/interests Managing these requests is a balancing act between patient wishes/interests and ensuring high quality patient careand ensuring high quality patient care

Accommodations should be proportional to risk associated with discussion, i.e. Accommodations should be proportional to risk associated with discussion, i.e. less flexible for high risk discussionsless flexible for high risk discussions

When a patient or substitute decision-maker refuse participation of When a patient or substitute decision-maker refuse participation of professional interpreter, seek to understand reasons/motivations for refusalprofessional interpreter, seek to understand reasons/motivations for refusal

Seek to understand the concern driving the requestSeek to understand the concern driving the request If request is from a SDM, remind them of how they are legislatively required to If request is from a SDM, remind them of how they are legislatively required to

decide (in accordance with PHIPA)decide (in accordance with PHIPA) Remind the patient/SDM of professional standards for confidentialityRemind the patient/SDM of professional standards for confidentiality Where possible, strike a compromiseWhere possible, strike a compromise

Institutional policies should strongly discourage use of Institutional policies should strongly discourage use of ad hoc ad hoc interpreters interpreters and require patients that refuse to use a professional medical interpreter to and require patients that refuse to use a professional medical interpreter to sign a waiver form. sign a waiver form.

Summary & Summary & RecommendationsRecommendations

ConclusionConclusion

Health Care Consent ActHealth Care Consent Act, 1996, SO 1996, c 2, Sch A, 1996, SO 1996, c 2, Sch A

Evans K. G. Evans K. G. Consent: A Guide for Canadian Physicians, Fourth EditionConsent: A Guide for Canadian Physicians, Fourth Edition , The , The Canadian Medical Protective Association, 2006Canadian Medical Protective Association, 2006

Jaworska, Agnieszka, "Jaworska, Agnieszka, "Advance Directives and Substitute Decision-Making", ", The Stanford Encyclopedia of Philosophy (Summer 2009 Edition)The Stanford Encyclopedia of Philosophy (Summer 2009 Edition) , Edward N. , Edward N. Zalta (ed.)Zalta (ed.)

Substitute Decisions ActSubstitute Decisions Act, 1992, SO 1992, c 30, 1992, SO 1992, c 30

Personal Health Information Protection ActPersonal Health Information Protection Act, 2004, SO 2004, c 3, Sch A, 2004, SO 2004, c 3, Sch A

Searight H.R. Russell J. Searight H.R. Russell J. Cultural Diversity at the End of Life: Issues and Cultural Diversity at the End of Life: Issues and Guidelines for Family Physicians. American Family Physician . 71(3); 2005: 515-Guidelines for Family Physicians. American Family Physician . 71(3); 2005: 515-522. 522.

Hall D. ProchazkaHall D. Prochazka A. Fink A. Informed Consent for Clinical Treatment. CMAJ A. Fink A. Informed Consent for Clinical Treatment. CMAJ March 20, 2012, 184(5): 533-540. March 20, 2012, 184(5): 533-540.

American Medical Association. Office guide to communicating with limited English American Medical Association. Office guide to communicating with limited English proficient patients. (2proficient patients. (2ndnd Edition) Edition)

Resources: Resources:

Questions? Questions? E-mail: sally.bean@sunnybrook.ca