Biggs v George [2016] NSWCA 113; Hinton v Alpha Westmead Private Hospital [2016] FCAFC 107

The requirement for clinicians to adequately communicate with their patients is well established for a number of reasons, including:

• the duty of care to appropriately treat a patient, and, in order to do so, obtain an adequate understanding of the patient’s medical history and clinical needs;
• an obligation to warn of material risks as part of the duty of care: Wallace v Kam (2013) 250 CLR 375; Rogers v Whitaker (1992) 175 CLR 479;
• to obtain appropriate consent for the treatment and as a defence against assault and battery;
• best practice to obtain optimum patient outcomes;
• to discharge professional duties to engage in satisfactory professional conduct under the Health Practitioner Regulation National Law; and
• in order to provide services without discrimination.

The Medical Board of Australia - Code of Conduct for doctors in Australia states:

“An important part of the doctor-patient relationship is effective communication, including familiarizing yourself with, and using whenever necessary, qualified language interpreters or cultural interpreters to help you to meet patient’s communication needs”.

There have been two recent cases which provide guidance on when an interpreter should be used, one dealing with the duty to inform of material risks and the other concerning discrimination.

Biggs v George [2016] NSWCA 113

In November 2009 Ms Sandra George, a Macedonian-speaker with a poor grasp of English, underwent an operation to remove an acoustic neuroma, a tumour on the sheath of an acoustic nerve.

The operation was performed following consultations in which Ms George had been assisted by interpreters.

On the first two occasions, held at a clinic run by St Vincent’s Hospital in Moree where Ms George lived, a friend translated for her. On the latter two occasions held at St Vincent’s Hospital in Sydney, she was provided with an accredited interpreter. During the course of the operation an adjoining facial nerve was severed which resulted in her suffering from facial palsy. In 2012 Ms George commenced proceedings in the District Court claiming damages for negligence against the surgeon, Dr Nigel Biggs, and St Vincent’s Hospital Sydney Ltd, for vicarious liability of its medical staff.

The law as concerns the duty owed by a medical practitioner to warn a patient of material risks remains that as set out in the High Court case of Rogers v Whitaker (1992) 175 CLR 479 which is “except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it” a choice which is “in reality, meaningless unless it is made on the basis of relevant information and advice”. That is, the duty to warn a patient of a proposed treatment is to warn of all material risks which a reasonable

person in the position of the patient would be likely to attach significance in choosing whether or not to undergo a proposed treatment” (Wallace v Kam (2013) 250 CLR 375).”

The Court Appeal stated “A correct statement of the content of the duty would have involved no more than that the medical practitioners were to take reasonable care to ensure that the material risks attending the surgical procedure were conveyed to the patient.

The need for translation may involve an additional element and …..as may be necessary for the practitioners to satisfy themselves that the substance of the information conveyed has been understood”.16

Therefore, medical practitioners (and other clinicians) are required to be satisfied that the substance of the information conveyed has been understood and this may include being satisfied that the translator has properly conveyed the message.

In the Biggs case, the patient saw an ENT registrar. A Macedonian telephone interpreter was booked on that occasion and used via handheld telephone, there being no speaker phone available.

The receiver was passed from doctor to patient and back as the conversation preceded. The doctor’s notes and oral evidence were of some importance.

The doctor stated: “So when I talk about my incision, I go through anything, any bits and bruises that might be any scars and then go on to problems that, a danger to the nerve, danger to hearing, balance etc. So, with my incision, I say you’re going to have an incision around your eye and you’re also going to have some mosquito bites on your face that might give you some little bruises.  That is going to be from the facial nerve monitor. The reason we need to have a facial nerve monitor is because this tumour wraps around your facial nerve, it’s one of the risks that – of removing the tumour, we’re peeling the tumour off the facial nerves, that there’s a danger of damage to it. The danger is most often temporary.  It will recover. Sometimes it can be permanent in which case we will need to repair the nerves.”

The operation was eventually carried out. At that stage there had been no fewer than 5 occasions on which, according to the evidence of 3 medical practitioners, the claimant had been given advice concerning the risks attendant on the procedure.

The Court of Appeal held that the claimant did know and understand the risks, therefore, no causation. Claims against both defendants dismissed.

Hinton v Alpha Westmead Private Hospital [2016] FCAFC 107

In Hinton v Alpha Westmead Private Hospital [2016] FCAFC 107, the appellant alleged that Westmead Private Hospital had discriminated against her as an associate of a person with a disability, being her husband, in contravention of various provisions of the Disability Discrimination Act 1992 (Cth) (the DD Act). The respondent, it was alleged, had refused to provide sign language interpreting services (Aslan) to the appellant’s husband, who is deaf, in respect of the scheduled birth of the child of the appellant and her husband at the hospital.

Section 5 of the DD Act states:

“Direct disability discrimination

1. For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

2. For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:(a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and(b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

3. For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.”

It was argued that the husband was not the recipient of the services.

The Federal Court decision was a judgment appealing a decision of the Federal Circuit Court summarily dismissing proceedings. The complaint to the Australian Human Rights Commission (AHRC) expressly said that, although Mr Hinton was not the “patient”, in a case where the appellant was an expectant mother arranging to use the respondent’s services for birth, “it is unreasonable to exclude Mr Hinton as if he is somehow peripheral”. Absent the opportunity to file any pleading to identify all of the material facts on which the appellant relied (an opportunity the primary judge denied the appellant,…), the application as fled was manifestly sufficient to raise an arguable case that the services in question included services by way of information to the husband so that he could support the appellant during the birth, confer with her as necessary, participate in the making of decisions about the treatment of the appellant and their child and, if necessary, give consent to treatment and procedures if the appellant was unable to do so. …., communication with the husband was not a separate service but a part of the service being provided to the appellant. This proposition is plainly arguable. Further, …, even if the service was being provided only to the appellant, it was equally plainly arguable that the associate provision (s 7 of the DD Act) was engaged and that the appellant was treated less favourably than a person whose associate did not have the disability in the same circumstances.

The court held that “the primary judge’s observation … that the respondent was not “present” during the discussion with the Nursing Unit Manager who was said to have informed the appellant that no Auslan interpreter would be provided appears to overlook the potential for the respondent to be found vicariously liable for the conduct of its employee …. It also overlooks the potential application of s 123 of the DD Act which provides that any “conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority is taken, for the purposes of this Act, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct” (s 123(2)). Again, it appears reasonably arguable on the face of the complaint that s 123(2) might be engaged.

Despite the primary judge’s repeated observations to the contrary, the appellant’s case does not mean that, for every service sought by the appellant, an interpreter would have to be provided for the appellant’s husband. It is obvious that the claim was fact dependent. The primary judge also seems to have overlooked ss 11 and 29A of the DD Act which concern unjustifiable hardship. In short, it is not unlawful discrimination in respect of the provision of a service if avoiding the discrimination would impose an unjustifiable hardship on the discriminator. No such suggestion had been made by the respondent …..or can it reasonably be said that the case was about a “trifle” merely because the appellant ultimately gave birth at another hospital which provided the appellant’s husband with an Auslan interpreter.

The appellant did not have her child at the hospital she had proposed because it would not provide an Auslan interpreter for her husband.

That circumstance gives rise to a reasonably arguable case of unlawful discrimination under the DD Act, whether it be direct or indirect discrimination. The objects of the DD Act, in s 3, are to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of “the provision of goods, facilities, services and land”. It is hardly a “trifle” (and still less, equivalent to buying a “bag of chips”) for a woman not to be able to deliver her baby in the hospital of her choice, merely because the hospital refuses to provide her husband with the interpreter required to ensure he can participate in the birth in the same way that a woman with a partner who can hear would be able to participate”.

The case has been referred back to the Federal Circuit Court for trial.

Care should be taken when dealing with a request from a patient or a carer of a patient with a communication difficulties to ensure compliance with, amongst other obligations, discrimination laws.

Practical Tips

• Be aware of your duty of care
• Use qualified interpreters where relevant.
• Indicators of when an interpreter may be required are if the patient (or their carer or legal representative):
  • asks for an interpreter;
  • can’t answer your questions easily;
  • can’t repeat back information accurately;
  • has poor or limited English or is deaf; or
  • uses family or friends to communicate.
• Practitioners must satisfy themselves that the substance of the information has been conveyed and has been understood by the patient.
• The best way to ascertain if the information has been understood by a patient (and correctly interpreted by an interpreter) is by the “teach-back” method and to avoid leading questions or questions which invite “yes” or “no” answers. For example, under the “teach-back” method, the patient should be able to repeat back the information accurately. Rather than say “Do you understand?” say “I want to make sure that you understand. Can you tell me in your own words….?”
• If you believe that an interpreter is not correctly interpreting the message, then you should (except in the case of an emergency) re-schedule the consultation with another interpreter and inform your facility of the problem with the interpreter.
• Keep adequate notes of the consent process, what was explained.
• If relevant, use patient information sheets disclosing material risks.
• Do not rely upon family members to interpret. Patients may not wish to freely explain their condition with family members.
• Family members may not be bound by confidentiality and are not familiar with medical terminology.
• Do not use bilingual staff to interpret – they are not credentialed and will be diverted from their other duties.
• Public facilities must be aware of relevant policies. For example: NSW Health Policies – PD2006_053 Interpreters – Standard Procedure for Working with Health Care Interpreters states that:
  • NSW Legislation requires that public sector agencies and services provide equitable access to people from non-English speaking backgrounds and people who are deaf.
  • Health care interpreters are to be used in all health care situations where communication is essential.
  • Both health care providers and patients/clients have a right to request a health care interpreter.
  • Professional accredited health care interpreters provide interpreting services within the NSW public system. The service is available 24 hours a day, 7 days a week.
  • The need for an interpreter should be recorded in a prominent place on the patients/client’s medical record.
  • Consent obtained without the use of a professional interpreter (e.g. a relative or friend) may not be legally valid.
  • Health care interpreters can usually provide short written translations which are directly related to the individual patient/client.
  • Where possible, requests for interpreters should be made in advance.
  • Health care interpreters are professionally trained interpreters and abide by a professional code of ethics.
  • Bilingual health care staff are not to be used as interpreters.

Interpreter services

• Public hospitals usually have an interpreter service available – refer to your State/Territory Health Department.
• The Translating and Interpreter Services provides interpreting services for medical practitioners: https://tisonline.tisnational.gov.au/RegisterAgency.
• Medical practitioners (defined as general practitioners and medical specialists) are eligible for the Department of Social Services’ Free Interpreting Service and access to the Doctors Priority Line (DPL) when providing services that are:
  • Medicare-rebateable
  • delivered in private practice
  • provided to non-English speakers who are Australian citizens, permanent residents, Temporary Humanitarian
  • Stay (subclass 449); Temporary Humanitarian Concern (subclass 786); Temporary Protection (subclass 785); and Safe Haven Enterprise (subclass 790) visa holders.

16 Biggs v George [2016] NSWCA 113 at [28]