Every medical treatment needs the patient’s consent (patient has to have full cognitive faculty and competence to judge.) regardless of the actual treatment contract. (Art 110 para 1 StGB, Art 173 ABGB, Art 283 ABGB, Art 8 para 3 KAKuG).
Besides patients having full cognitive faculty and competence to judge, they need to receive enough information to legally binding enter or deny a treatment contract. The information given by doctors needs to be detailed enough for proposing a foundation of knowledge on which decisions regarding the treatment can be taken. Following principle applies:
The less urgent the treatment and the higher the risk of damage the more extensive the information talk has to be. The length of the information talk is inversely proportional to the vital and crucial indication of treatment. At the risk of one’s health or life the information talk can be reduced or even be cancelled.
It is not possible not to inform a patient about a treatment or handle them differently just because they do not speak (enough) German.
The following section deals with characteristics of the information talk with non-German-speaking persons in detail:
4.1 The information talk’s addressee
As the information talk is a condition for agreeing to a medical treatment, doctors need to communicate to the persons that they need to give their consent. This are usually the patients themselves. But in case that this patients do not have full cognitive faculty and competence to judge the addressee is their legal representative (e.g. parents, trustee…) or their chosen representative who are given the power of attorney. Patients stay the addressee for the information talk even if they cannot speak German. Consequently, it is not enough for doctors to just talk with a patient’s German speaking partner. Even more they are not allowed to tell them if the patient does not give them permission to do so. Following the professional secrecy other persons must not be informed unless that patient wishes them to know. (cf. Art 5a clause 3 KAKuG, Art 9 para 1 GuKG, Art 7 para 1 clause 3 SanG). More to professional secrecy later in this module.
Family members can be used as amateur interpreters in some cases, but this is generally not recommended, see Module 4. This means that they are not the information talk’s addressee but interpret for the patient. In such situations doctors need to pay close attention if the family member really is translating. Although it is not possible for doctors to really check if the translation is correct they have to pay attention if there is a big time difference in translation or if interpreters even answers the questions by themselves. More information available under point amateur interpreting.
E.g.: A couple is visiting your ordination. Both are refugees. It seems like the woman is suffering from stomach ache. She does not speak German but her partner speaks a little German. He demands you to inform him what is going on with his wife. As he is not the addressee for that topic you need to inform the wife and not him. If no professional translator is available you can use him as amateur translator if his wife agrees to that.
4.2 Person that needs to be informed
Doctors have an information obligation due to different legal bases including the treatment contract. As the information talk is part of a doctor’s work it is not possible to hand that task over to someone other than a doctor. That means that health workforce or doctor’s receptionists cannot take that work over. Even if they can speak the patient’s language and the doctor cannot they are not allowed to do so. They can only help as amateur interpreters.
The only thing possible is to hand the information task over to another doctor. Using trainee doctors is not necessarily prohibited. It only depends on the decision of their teaching doctors and the trainee doctors themselves under the condition that they are able to perform the action needed. (BMGFJ-92100/0094-I/B/7/2008, 29. 5. 2008 = Kierein/Lanske/Wenda, Gesundheitsrecht JB 09, 270 f). If doctors of different specialisations are involved every doctor is responsible for the correct information of their own speciality.
E.G.: In hospital “K” it is very common that the nurse P is helping with the information of Turkish speaking persons. After every information talk he talks alone with them once more giving them an “extended information talk”. This is illegal as a doctor needs to inform patients and cannot pass it on to other health workforce. (This case really happened in a hospital in Karlsruhe and was considered illegal by decision of the Supreme Regional Court (19.03.1997, 13 U 42/96 = VersR 1998, 718)
4.3 Ways of information
The information talk must be held in form of a verbal conversation between doctor and patient. This allows doctors to find out details about a patient’s knowledge and his ability to cope with the information so that they can choose the right amount of information. Furthermore doctors need to make sure that patients understand what was said. Only a verbal conversation allows doctors to adjust their language to a patient’s understanding so that they can understand all the relevant medical information. The information talk needs to be held in a language that is understandable for patients. Therefore medical terms need to be converted in easily understandable expressions. (Art 5a clause 3 KAKuG). Besides that the language also needs to be adapted to one’s cultural understanding. The Supreme Court of Judicature decided for instance that a dentist had to accept the fact that a general anaesthetic is considered normal even for small interventions for his patient who came from a different cultural background. As a result the dentist would have had to reinforce the clarification that this kind of intervention is something extraordinary indeed and that it is not applied for small interventions in Austria. (OGH 6 Ob 258/00k).
Written information sheets can only be used as support but cannot replace the verbal conversation. Even if verbal conversation is not possible but there are information sheets in the patient’s language they cannot be used as substitution. In such a situation a professional interpreter or a person familiar with the language is necessary. Furthermore doctors should check if patients are capable of reading when using information sheets as not all refugees are alphabetized.
Written information sheets as only source of information are only possible in presence of an imminent danger to health or life.
E.g.: Asylum seeker A comes with heavy stomach ache to your ordination. There is no interpreting service available in the next six hours. Her family members also do not speak German. On the Internet you find a refugee organisation’s website with basic information to medical treatment in Farsi. To let the patient wait with heavy stomach ache for 6 hours is no option. This case resembles an exception where it is enough to hand her over the written information before you start examination.
4.4 Approaching conversations with language barriers
If a patient does not speak or understand enough German to have a conversation doctors should switch to a langue both parties have in common. However it is a rare occasion that doctor and patient have enough knowledge of the same language to have an information talk that would enable a good medical treatment.
If no understanding is possible and thus no secure diagnosis can be given the appointment has to be cancelled or postponed until understanding is possible if it is no emergency. The most important criteria for this are urgency and complexity of the information talk/treatment. Following the principle of the less urgent the time of treatment and the higher the risk of damage the more extensive the information talk an interpreter needs to be hired if treatment is necessary but not urgent. That also means that it is not necessary to hire an interpreter if treatment must be started quickly. If even hiring an interpreter puts the patient in danger the obligation to inform can be relativized or cancelled at all.
In terms of liability and quality concerns it is necessary to hire a professional interpreter if communication problems occur. If this is not possible at the moment it is best to postpone the appointment until the service is available. Such services are offered in form or interpreters coming to the ordination as well as video interpreters (more of that below).
If no professional interpreter is available it is possible to use amateur interpreters like the person accompanying the patient, family members or employees in health institutions. However, amateur interpreters are generally not recommended see Module 4.
Following section deals with the legal issues of professional and amateur interpreters.
4.4.1 Professional interpreters
Professional interpreters have translating, culture and language competences. In Austria those are taught in a master program. As the obligation of secrecy for doctors also applies when talking to a professional interpreter good interpreters usually start the conversation with the question if the patient agrees with the following procedure.
On the other hand it is important to ensure that the interpreter too is under obligation of secrecy. If interpreters are employed in a hospital, a health care institution or a doctor’s ordination the terms of professional secrecy can be part of the working contract. If doctors work with external interpreters they need to ensure their professional secrecy by making a contract with them.
An advantage when using a professional interpreter in contrast to amateur interpreters is the question of liability for compensation if the interpreter translated something incorrectly or insufficiently. If there is damage to the patient because of a bad translation the interpreter is usually liable for the damage done.
Interpreting services are not only offered personally but are also available via internet communication or telephone conferences.
Because of a pilot project of the Health ministry video interpreting is now commonly available in Austria and Germany. Within 120 sec. it is possible to add a professional interpreter via a secure connection or via telephone to the information talk. This service is now available 24 h per day. You can find more information on the following website: http://www.videodolmetschen.com/.
Unlike Germany Austria has not clarified who has to take over the costs for such an interpreting service. In Germany patients have to pay the service on their own. Only in exceptional cases welfare pays for it. Due to the unclear cost coverage situation, video interpreting is not commonly used in Austria in primary health care provision.
4.4.2 Amateur interpreter
If relatives, acquaintances, foreign people from the waiting area or other patients are used as interpreters doctors have to take care that certain conditions are ensured such as secrecy and quality of interpretation.
First of all the person working as interpreter must get the patient’s permission to work as such. It is possible that patients prefer not to be consulted before telling the potential interpreter something about their problems. Furthermore it is important to ensure that the patient really is receiving the information and not that amateur interpreters are answering the questions on their own without passing on information. Doctors can trust the fact that the interpretation is complete and correct if someone is offering his service voluntarily but only to such an extent that the opposite is not shown through a patient’s reaction or a notable divergence of speaking time between the original and the translated version.
E.g.: The severely ill asylum seeker A comes with a voluntary assistant F to your ordination. The assistant speaks German fluently but only a little Farsi. A speaks Farsi fluently but only a little German. You want to talk about the possibility of an operation with A and F is willing to translate. You as well as your patient agree to that. But quickly you realise that F tries hard yet only produced some simple words when you are explaining complex situations in whole sentences. It is obvious that the patient cannot follow your information talk so you cannot assume that the patient A is now fully aware of the information talk’s content. As a consequence you have to ask A and F to come back later with a professional interpreter or a person that speaks Farsi or you send them to a doctor who offers interpretation services into Farsi and German.
Children are not suitable for interpreting services although they might speak the language better than their relatives do. Although they might have a natural interpreting competence due to being raised bilingual it is normally not possible for them to translate adequately. A medical information talk and its vocabulary are too complex and complicated for a child to understand. Apart from that this would be an emotional and mentally challenging situation for a child. Doctors should never use children as interpreters!
4.5 Insurmountable language barriers
If no professional interpreting service nor amateur interpreter are available doctors need to decide if patients need to be treated urgently or not. If treatment is not urgent non-German-speaking patients must not be treated as no information talk is possible and thus patients cannot legally give their consent.
If postponing (due to organising an interpreter) or cancelling treatment would lead to a threat to patients’ health or life patients can be treated without information talk.
E.g.: Asylum seeker A comes to your ordination to receive different injections. A conversation with him is only possible about everyday things but not about the complex topic of advantages and risks of injections. As you have no interpreting service available you need to ask A to come again another time when he or you have organised an interpreter. Postponing injections does not cause a threat for A’s life. Therefore an information talk must be held without exceptions.
Alternative: A suffers from a broken bone and pain. He urgently needs to get an X-ray and an operation thereafter. He does not speak German and no interpreter is available. If he will not be treated this could mean a severe risk for his health. In this case A can be treated without a previous information talk.