We’ve blogged about medical interpreters, medical translators, foreign language barriers and informed consent. In Cruzan v. Director, Missouri Department of Health, the Supreme Court recognized the right of a competent individual to control their own medical treatment as being a fundamental liberty interest. Specifically, the Court held that where the prior expressed wishes of an incapacitated patient can be determined by clear and convincing evidence, those wishes should be honored. Thus, a patient has a right to provide instructions concerning their future medial care.
Based on the Cruzan decision, Congress passed the Federal Patient Self-Determination Act (PSDA), which requires health care providers to maintain written policies and procedures in order to provide information to adult patients regarding their right to accept or refuse medical treatment. Furthermore, health care providers must also document whether or not a patient has executed an advance directive.
Under both the Cruzan ruling and the PSDA, several issues arise concerning a non-English-speaking incapacitated patient. First, Cruzan requires prior wishes to be determined by clear and convincing evidence. However, without a proper foreign language interpretation and recording of the foreign language translation, this may be difficult to come by. Second, according to the PSDA, health care providers must maintain written policies and information for patients. However, if this information is not provided with a foreign language translation, non-English speaking patients will be unable to understand their rights or communicate their wishes, thus making it difficult for the health care provider to document the patient’s advance directive.