Canada is known worldwide as a land of many cultures and is one of 57 countries with two official languages. In addition to the English and French speakers here, Statistics Canada data indicate that linguistic diversity is on the rise and that, as of 2017, nearly seven percent of the population speaks neither English nor French at home.
These trends reflect the changes that Canada has undergone in terms of the geographic origin of its immigrants. The number of people who speak languages from countries that are recent sources of immigration, primarily Asian countries, is on the rise. Meanwhile, the number of people who speak certain European languages—which reflect older waves of immigration—is declining.
The Canadian federal government also committed to “preserve, promote and revitalize Indigenous languages in Canada” in adopting the Indigenous Languages Act in 2019. Given that the Act creates an obligation on the part of the federal government to provide “predictable and sufficient funding to support the implementation of the Act,” it is anticipated that the proportion of Indigenous language speakers in the country will steadily increase over the next decade and beyond.
LANGUAGE DIVERSITY AND HEALTH CARE
This unprecedented growth of language diversity is particularly relevant to the health care profession, where clear communication between providers, patients and caregivers is vital to ensuring quality care. Language can pose a significant barrier for health care providers when obtaining informed consent from their patients.
This duty of “informed consent” has been a part of the Canadian common law since 1980, when the Supreme Court of Canada issued two landmark decisions, Hopp v. Lepp and Reibl v. Hughes. It has since been a professional and legal requirement for Canadian health care providers to ensure they effectively communicate the risks and benefits of medical treatment to patients (and their substitute decision-makers).
WHAT IS INFORMED CONSENT?
Determining whether the duty of informed consent has been fulfilled is not entirely objective; certain patient characteristics must be considered to make sure the information provided is understandable. Health care providers have a responsibility to “take reasonable steps” to ensure their patients understand the information. A failure to do so can result in claims for medical malpractice.
Fulfilling this responsibility can be particularly challenging where there are language barriers. As the Canadian Medical Protective Association acknowledges, “what amounts to ‘reasonable steps’ will very much depend on the individual facts and circumstances of the particular situation.”
Caselaw in Canada suggests the following, non-exhaustive list of principles will be considered in a determination of whether the duty of informed consent has been breached in a particular case:
- Professional standards (set by governing bodies for each particular health care profession) must be met, but doing so does not necessarily satisfy the duty;
- Based on their understanding of the values, hopes and any other subjective factors influencing the patient’s decision whether or not to provide consent for a procedure or treatment, physicians must provide all information relevant to those factors;
- Risks, no matter how remote, must be disclosed if they could lead to a serious adverse outcome;
- Physicians must not only answer their patients’ questions but must anticipate what each particular patient might want to know in making a decision, including whether or not alternatives to the proposed treatment or procedure are available;
- It is only in those circumstances that complete, detailed disclosure has the potential to compromise the emotional health of a patient that a physician can withhold or generalize information about risk; and
- Every situation, like every patient, is different. Whether or not the duty to obtain informed consent has been satisfied must be determined on its facts and not according to an objective standard.
COMMUNICATING IN THE VIRTUAL ENVIRONMENT
The ability to communicate clearly with patients and their families during the last two years has been limited by pandemic measures. With the prevalence of virtual medicine skyrocketing (virtual visits to primary physicians increased 56-fold in Canada in the spring of 2020), the average Canadian has continued to have access to safe and timely care, but at a potential cost to clear communication.
The Canadian Medical Protective Association recognizes that in obtaining informed consent for or informed refusal of medical treatment:
“… personal attendance [of the patient] permits the physician the opportunity to observe the patient’s reaction for signs of apparent comprehension or confusion. As well, the ability of the patient to ask questions will often assist the physician to assess the level of patient understanding.”
Few would argue that some nuance is lost when meetings that previously took place in a doctor’s office are moved online, particularly where a support person may previously have attended to assist with translation.
LANGUAGE DIVERSITY IS GROWING
Aside from the legal liability for a health care practitioner who fails to obtain a patient’s informed consent, studies show that patient outcomes are enhanced when the lines of discourse between physicians and patients are open. Given that over 70 Indigenous languages are spoken in Canada, and more than 11 percent of the population have neither English nor French as their first language, the communication challenges facing health providers and their patients are clear.
Recognizing this, many healthcare institutions provide free translation services for patients and their families, which go well beyond Canada’s two official languages. Many research and educational institutions have mandates to increase participation by underserved populations. These organizations can be a valuable source of guidance for articulating the general information required by and from patients to obtain their informed consent.
This can be a good start for the health care provider, but patients facing language barriers may need much more to receive fully informed quality care. All patients must know that they are entitled to make choices about their care, armed with all the information they deserve.
Contact Cuming & Gillespie LLP in Calgary for Advice on Issues of Informed Consent
If you have concerns about the information provided to you before a medical procedure, the compassionate team at Cuming & Gillespie LLP is ready to help. Contact our office online or at 403-571-0555 to discuss informed consent, medical malpractice, and personal injury matters.