Legal obligations to provide interpreters to patients who are deaf, hard of hearing or deafblind

The resource provides information for staff in Victorian public hospitals on their legal obligations when working with patients who are deaf, hard of hearing or deafblind.

As public authorities, public hospitals have specific obligations under the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’). Both public and private hospitals also have obligations regarding discrimination in the area of service delivery under the Equal Opportunity Act 2010. Complying with these laws is important to ensure patients who are deaf, hard of hearing or deafblind receive safe, high-quality and equitable healthcare. Compliance also means you can avoid potential complaints against you or the hospital at which you work.

This resource is to be read in conjunction with Information for Public Hospital Staff: Working with Patients who are deaf, hard of hearing or deafblind, which provides practical guidance for staff in Victorian hospitals on working with patients who are deaf, hard of hearing or deafblind.

What is Auslan?

Auslan (Australian Sign Language) is the sign language of the Australian Deaf community. Further information about Auslan interpreters and working with patients who are deaf, hard of hearing or deafblind is available in the fact sheet Information for Public Hospital Staff: Working with Patients who are deaf, hard of hearing or deafblind.

Which patients need Auslan interpreters?

Patients who are deaf or deafblind, as well as some patients who are hard of hearing, require Auslan interpreters. These patients may also need other communication adjustments.

When does a hospital need to provide an Auslan interpreter?

A patient must be able to understand information provided and communicate with doctors, nurses and other hospital staff in order for them to consent to medical treatment and receive safe and high-quality health care. Failing to provide an interpreter for these purposes may be a breach of Victoria’s human rights and anti-discrimination laws.

In Victoria, public hospitals have a duty to provide patients who are deaf, hard of hearing or deafblind with an Auslan interpreter, at the request of the patient, under two laws:

  1. Equal Opportunity Act 2010
  2. Charter of Human Rights and Responsibilities Act 2006 (the Charter)

The Equal Opportunity Act

Hospitals must make reasonable adjustments to accommodate patients with disabilities. For patients who are deaf, hard of hearing or deafblind, adjustments may include providing them with an Auslan interpreter and other communication adjustments at their request.

Reasonable adjustments are adjustments that you need to make to ensure that patients who are deaf, hard of hearing or deafblind are able to access the healthcare services in your hospital. When considering an adjustment, you need to balance such things as the needs and circumstances of the patient with the financial circumstances of the hospital, and the consequences of making or not making the adjustment. You also need to refer to what your hospital has committed to in its Disability Action Plan.

Given the importance of interpreters for patients whose first language is Auslan, there are only limited circumstances where it may not be considered reasonable to provide an Auslan interpreter, such as in some emergency situations if it is not possible to get an interpreter. In such situations, other temporary adjustments should be made such as video remote interpreting, or writing, pending the arrival of an interpreter.

NOTE: Some patients who are deaf or hard of hearing do not identify themselves as having a disability. They may instead see themselves as part of an Auslan language community. It is important to be mindful of this sensitivity when working with this patient group. However, patients who are deaf, hard of hearing and deafblind are protected from discrimination under the Equal Opportunity Act on the basis of a disability, and are entitled to have reasonable adjustments made so they can access the service.

The Charter

The Charter sets out the following rights relating to the provision of Auslan and other sign language interpreters in public hospitals:

The right to legal recognition as a person before the law

Patients, including those who are deaf, hard of hearing or deafblind, have the right to make their own decisions about their health care.

However, some patients, who do not have capacity to understand and make decisions, have an enduring medical power of attorney which appoints another person to make medical decisions on their behalf.

The right to equality and protection against discrimination

All patients should have equal access to health care services. Patients with disabilities have a right to reasonable adjustments and modifications that they need.

The right to consent to medical treatment

A patient must be given relevant medical information, including treatment options and risks, in a way that they understand. Except in some emergency situations, patients can only be given treatment after they have understood the information and provided their full, free and informed consent.

The right to privacy

A patient’s medical information is confidential between the patient, medical staff and the professional interpreter.

Noting the exceptions outlined below, hospitals must provide a patient with an Auslan or other Sign Language interpreter at the request of the patient in situations where they are:

  • receiving information and advice on their medical situation, treatment options and risks
  • asking questions about their medical situation or treatment
  • making decisions about their medical treatment
  • receiving information on their rights.

Under the Charter, a hospital can only limit these rights where it is reasonable and justified to do so, taking into account:

  • the nature of the right
  • the importance of the purpose of the limitation
  • the nature and extent of the limitation
  • the relationship between the limitation and its purpose
  • any less restrictive means to achieve the purpose that the limitation seeks to achieve.

In practice, a patient’s rights may only be limited in narrow circumstances considering the legal criteria above. For example, in some emergency settings, it may not always be possible to provide an Auslan interpreter in a timely manner and other communication adjustments may be necessary pending the arrival of an interpreter.

What is discrimination?

Disability discrimination is treating somebody unfavourably because of a disability that they have. In hospitals, this could include refusing to provide treatment or a service to a patient, providing a poor quality service or making a person feel humiliated because of a disability that they have.

Discrimination also includes a policy or practice that applies to everybody but can, or does, disadvantage somebody because of their disability. For example, a hospital might announce each patient’s appointment by a loud speaker in the waiting room. Although applied to everyone, this practice means that some people who are deaf and hard of hearing may not know of the announcement and miss their appointment.

A patient has asked for an Auslan interpreter, but I think that the consultation can be done without one. Do I still need to work with an interpreter?

Yes. Failure to work with an Auslan interpreter may amount to a breach of human rights under the Charter. It might also amount to discrimination under the Equal Opportunity Act. In some circumstances, a hospital might be liable in other areas of the law, such as the duty of care towards patients.

Can the hospital insist that partners, family members or friends interpret for the patient?

No. There are a number of risks associated with using partners, family and friends to interpret such as:

  • they may lack the professional skills to interpret accurately
  • the patient may not be able to impart relevant information openly and honestly
  • there is a risk that patients may be subjected to undue influence in the process of making medical decisions.

These risks can compromise patient confidentiality, informed medical consent, selection of appropriate medical treatment and associated risks of harm to the patient.

What can hospitals do to improve staff knowledge of Auslan and other communication needs?

All hospital staff should receive training to ensure they have the skills to perform their role without discriminating against patients and respond effectively to the needs of patients who are deaf, hard of hearing or deafblind.

Your hospital should:

  • ensure staff are aware of their specific responsibilities and patients’ rights
  • keep yourself and your staff informed of best practice in Auslan interpreter provision in hospitals
  • improve staff knowledge and performance through face-to-face training sessions held at least every two years with regular reminders between sessions, covering the key laws and expectations, reflective practice and supervision.

At a minimum, all hospital staff members should have read the resources provided on the Signs for Health website about legal obligations and working with patients who are deaf, hard of hearing or deafblind.

For more information on training visit the Victorian Equal Opportunity and Human Rights Commission’s website.

Disclaimer

This information is intended as a guide only. It is not a substitute for legal advice.