Language barriers, consent and medical negligence claims | Medical Negligence and Personal Injury Blog | Kingsley Napley

Language barriers that adversely affect healthcare provision is an enduring problem that can lead to serious harm for patients. In the Kingsley Napley Clinical Negligence Team we are acutely aware of this ongoing issue, acting as we do for claimants who have not received proper care as a result of not speaking fluent English.

The matter has come to the fore again recently with a Welsh Parliament (Senedd) report from the Equality and Social Justice Committee highlighting that difficulties can ensue where family members are relied upon to translate in medical situations. The committee is now calling for an end of the use of family members as interpreters as a matter of urgency.

Speaking to the committee, Dr Shanti Karupiah, Vice Chair Policy and Public Affairs, Royal College of GPs, explained that it is hard for those that do not speak the same language to get appropriate care. If a misdiagnosis is made it can be the difference between life and death. Dr Karupiah gave an example of a woman whose cervical cancer was diagnosed late where there were issues with translation through a relative.

A BBC investigation last year found that interpreting issues were a contributing factor in at least 80 babies in England either suffering serious brain injuries or dying between 2018 and 2022.

Right to an interpreter?

Healthwatch England (a statutory committee of the Care Quality Commission) reported in 2022 that a lack of interpretation support compounded issues for those facing language barriers and that people were not always aware of professional interpreters or how to access them. They also highlighted that in some instances interpreters that were used did not speak the correct dialect.

Under the Equalities Act 2010, those who do not speak English have the right to an interpreter when dealing with public sector organisations. In 2016 NHS England introduced the Accessible Information Standard (AIS) which sets out that all providers of NHS funded care must make sure people receive information they can access and understand and communication support if they need it. The government makes clear that ‘it is the responsibility of NHS Service providers to ensure interpreting and translation services are made available to their patients free at the point of delivery’.

Despite this, according to a BBC investigation, Executive director of Public Service Interpreters, Mike Orlov, stated that qualifications within the profession varied hugely, making standards patchy. He raised concerns that individual trusts were being encouraged to operate their language service needs independently and said there were many instances of family members or friends being deployed to translate in hospitals.

Without a doubt it must be difficult to assess the need for a translator in some instances but being able to speak ‘day to day’ English is not the same as being able to understand medical language.

Patients not being able to understand their treatment options is a highly dangerous situation which, as well as leading to potential physical harm from misdiagnosis, can also leave patients feeling isolated, frustrated and unheard.

Doctors are under a duty to obtain informed consent from their patients (there is more information on the topic of consent on our dedicated webpage here). If a patient cannot understand the language spoken by the doctor then clearly they cannot understand their options and give informed consent.

While issues in relation to consent are often complicated from a legal point of view, in circumstances where there has been a failure to take reasonable steps to ensure a patient understands the medical advice provided and they are harmed as a result, there may be a claim for clinical negligence. Kingsley Napley are extremely experienced in bringing these types of cases.

More information 

If you would like to discuss more about the impact of language barrier in medical negligence claims please get in touch with our Medical Negligence Team

about the author 

Kirsty Allen is a highly experienced medical negligence solicitor who undertakes a wide variety of cases with particular specialisms in child cerebral palsy and adult brain injury cases, fatal claims, loss of sight cases, as well as failure to diagnose cancer and gynaecological claims.