13 Nov Guest Post: Interpreter’s Liability
Today we welcome a post from guest author Catalina J. Natalini.
Catalina works as an interpreter and translator in legal, medical and school settings. She holds a Masters of Arts Degree in Linguistics from the University of Zurich and is a certified court interpreter in the language combination English-Spanish.
She has combined her experience as interpreter and translator with her knowledge of linguistics to engage in the teaching of interpretation and translation. She is an Associate Lecturer in the Master of Translation and Interpretation at La Salle University where she teaches medical translation and legal interpreting. Additionally, she has had the honor of being invited as guest speaker to present on interpretation at the National Association of Judicial Educators Conference in Philadelphia, PA and on interpreter ethics at the Third East Coast Regional Conference, Translator and Interpreter Development, in Philadelphia, PA. In September 2009, she participated as a speaker in the education program The Language of Justice organized by Widener University School of Law Legal Institute and the Pennsylvania Interbranch Commission on Gender, Racial & Ethnic Fairness, and most recently has presented on interpreting topics at the 2015 International Medical Interpreters Association Conference.
In 2008, she was appointed as interpreter representative to the Delaware Court Interpreter Advisory Board where she contributed her expertise to policy discussions and decisions regarding language access issues until 2012. She is a member of the American Translator’s Association, the International Medical Interpreters Association, the National Council for Interpreters in Healthcare, and the Delaware Valley Translators Association. She was appointed as the Delaware State Chair for IMIA in July 2012.
Interpreter’s Liability
A few months ago, a colleague contacted me regarding what she considered an ethical question. As she was preparing to serve as interpreter for the client of a nonprofit organization going through immigration procedures, she found among the documentation a form bearing the title Form I-485, Application to Register Permanent Residence or Adjust Status, (http://www.uscis.gov/sites/default/files/files/form/i-485.pdf), a standard form required by the U.S. Citizenship and Immigration Services (USCIS). This form includes the following paragraph on the last page of the application under the section labeled “Interpreter’s Statement and Signature.”
“I further certify that I have read each and every question and instruction on this form, as well as the answer to each question, to this applicant in the above-mentioned language, and the applicant has understood each and every instruction and question on the form, as well as the answer to each question.”
My colleague did not feel comfortable certifying that the applicant understood (her emphasis) each and every instruction and question on the form. However, as she mentioned to me, this was a standard form provided by the USCIS. I told her she was right. In my daily job working in court and school settings, it has become very clear to me that as an interpreter, it is beyond my responsibility and scope of practice to guarantee or confirm whether any of the speakers has understood or not any information exchanged during the interpreting session.
My colleague told the attorney conducting this case that she was not going to sign the form and explained her professional position. The attorney was very unhappy about this and mentioned the fact that OTHER interpreters before her had signed the form without any problem. He then went on to complaining to the non-profit agency because my colleague was refusing “to cooperate with his case”. Needless is to say, my colleague’s services were no longer required for this case.
Coincidentally, a few months later I heard from another colleague in a similar situation. This time the question had to do with newly-edited Form I-693, Report of Medical Examination and Vaccination Record (http://www.uscis.gov/sites/default/files/files/form/i-693.pdf). The interpreter coordinator of a Wisconsin hospital voiced her concerns to my colleague regarding the wording of this form, which states on page 2 that the interpreter is to certify the following:
“I have read to this applicant every question and instruction in Part 1. of this Form I-693, as well as the answer to every question in Part 1., in the language provided in Part 1., Item Number 12.; and
I have read the Applicant’s Certification to the applicant in the same language provided in Part 1., Item Number 12.
The applicant has informed me that he or she understands every instruction and question in Part 1. of this Form I-693, as well as the answer to every question in Part 1., and the applicant verified the accuracy of every answer, and
The applicant also has informed me that he or she understands the Applicant’s Certification.“
My colleague posed the following question: “Doesn’t this go against our code of ethics?” She also had a question of practical nature: “How does the signature component get completed when the interpreting services are provided by telephone?”
I mentioned to her the case regarding Form I-485 with similar language. As in the case of my first colleague, she also felt uneasy about signing such a statement.
I have since consulted with other interpreters and the consensus so far is that interpreters cannot be held liable for the “understanding” of the applicant, but can only certify that he/she sight translated all the questions and answers in the presence of the provider.
This is not an issue of advocacy or cultural mediation; this is an issue of liability. In cases when the applicant is an English speaker, who is liable for the applicant’s understanding?
Furthermore it is important that agencies contracting interpreters have a better understanding of the interpreter’s liability as a professional and seek ways not to compromise the ethics and standards of practice of professional interpreters.
I think it is commendable that these two interpreters had the common sense to stop and think this over from the point of view of their professional scope of practice, and had the courage to question and even challenge such statements that compromise their liability and place them in a dangerous position. Have any of you run into a similar situation before? Do you have any ideas on how we could effect change? Obviously, the USCIS is not aware of the conflict the language of these forms poses to professional interpreters.
Catalina J. Natalini
State Certified Court Interpreter – Spanish
Adjunct Professor at La Salle University – Master of Interpretation and Translation
LinkedIn page: www.linkedin.com/pub/catalina-natalini/24/ab1/333
You may contact me directly at cnatalini@linguafrancainc.com
This is such an important issue, and not only for medical and court interpreters. I also was asked to sign a waiver before working at a research facility in Florida. The waiver focused on medical personnel and not on interpreters and did not apply to me. I asked if I could alter the document to properly reflect my situation and, obviously, that was denied. I did not sign the document.
The waiver included statements such as [professional] has received instructions on how to work with cadavers, [professional] has received safety instructions and a few others that perfectly applied to the doctors who were being trained, but not to the interpreter.
It has been three years and I have not been called back… My other colleagues who simply signed the waiver still work there. We need to educate the professionals as much as our clients.
Thank you for keeping this issue in the spotlight.
Yes, Gio, you are right. It is not only about educating the clients, it is also about educating the professionals. As professional interpreters we should continually communicate with our colleagues and share situations like this. Much good may come from reflection and consensus.
Thanks for your comment.
Catalina
Dear Catalina
I encounter situations similar to yours and Gio quite often, but more in the US and sometimes in Japan.
In business interpreting, nobody signs anything without a careful and close read of legal contracts, often with assistance of Legal and members from other business groups. In medical and court interpreting, not so much and I see things done somewhat callously. Even at real estate closing meetings, people there (buyer, seller, agents of both, others) will look at you with hatred and anger (my experience in NYC) if you try to do a word-for-word proper interpretation for multi-paged documents, all of which have to be read and signed, which normally would take hours to sight translate.
Earlier this year, I had to interpret a legal one-page document that is clearly written at high level, full of technical jargons, at a family court here in Japan for a minor who was caught with pot. I think, he was 15 years old. Anyway, my question to you would be whether what I did is ethically just, both in your country and from your perspective. Because he looked puzzled and completely lost when I read the lines on the document to him, and he couldn’t answer yes or no when I asked him if he understood, I broke it down if he did not understand it as is. We were alone in the basement in the detention area and there was nobody else. I am not a lawyer. So, if this was not a general statement for him to sign and if it was a legal contract, then I clearly would not have done what I did, but because it was a general “informed consent” type of document, and I was told by detention staff that all interpreters read this to the delinquent, and because I understood what everything means, including what’s between the lines, I did it, otherwise this barely-high-school kid would not have understood what somebody who is probably a lawyer or criminal justice expert wrote.
There are so many sticky situations like this that are never discussed in school and you just have to exercise your best judgment or ask your mentors for help or ask on a public forum like this.
Sincerely
Andrew MIGITA-MEEHAN
Dear Andrew,
Thanks for your comment, and even more for sharing your dilemma which is entirely the subject for a new post. I would like to follow-up with you on your story with a couple of question I have. Write to me at cnatalini@linguafrancainc.com.
Catalina
Dear Catalina,
Unfortunately, the USA is among the very few countries in the world where the fear of liability prevails over common sense.
In the first case, Form I-485, it is normal for the interpreter to make sure that the applicant understands each question and gives a pertinent answer. Yes, the interpreter, if he/she was hired or volunteers to interpret for the alien has the moral obligation to make sure that the applicant understood the questions asked. Where is the risk of liability? I have been interpreting in immigration courts all over the country for more than 18 years and never heard a judge saying that the interpreter is liable because the applicant claimed in court that the interpreter failed. No wonder nobody called back the interpreter. I wouldn’t.
Same thing with the I-693 form. Where is the risk of liability?
I encountered this position from many lay people who get their legal “knowledge” from TV or newspapers.
I agree that in court settings the interpreter is not responsible if the LEP understands or not, since he/she acts only as a conduit.
Best,
Lee
Dear Lee,
Thanks for your comment.
Catalina
Good afternoon Catalina. I’m very glad this is being addressed. Working with you in court we both know that many times our defendant’s truly don’t understand the subject of a given statement because of their limited education (90% plus with less than 6 years of elementary school). Thankfully we both know not to do a sight translation without their attorney or a prosecutor present so we can interpret the defendant’s question/confusion. However, we also know that not every Interpreter uses their Code of Ethics’ and the Rule of 3. This is one of the issues which will always need to be addressed — I think almost on a daily basis until both Interpreters and attorneys/clinicians understand why we (Interpreters) cannot do this. Thank you for bringing up this very timely matter.
Kind regards,
Alina Salvat, M.A., ACELS, LC
Certified Court Interpreter – English/Spanish
DE & PA Administrative Office of the Courts
Dear Alina,
Thanks for your comment. Yes, those working with interpreters need to know about interpreter’s limitations base on our Code of Ethics and standard of practices.
Catalina
@ Alina,
Let us not confuse settings. Catalina pointed out two scenarios that were different from what many court interpreters usually do:
It was not in a court of law. It was about interpreting for an LEP to fill his asylum request form, where the interpreter reads the question, the applicant answers and the volunteer or attorney writes the answer. It is normal to make sure that the LEP understands the question. At the end, the interpreter reads back all the questions and answers given by the applicant.
Please read carefully the following:
Interpreter’s Statement and Signature
I certify that I am fluent in English and the below-mentioned language.
Language Used (language in which applicant is fluent)
I further certify that I have read each and every question and instruction on this form, as well as the answer to each question, to this applicant in the above-mentioned language, and the applicant has understood each and every instruction and question on the form, as well as the answer to each question.
Signature (Interpreter)
Print Your Full Name Date Daytime Phone Number
(mm/dd/yyyy) (include area code)
Where is the risk of liability or breaking the provisions of the Code of Ethics?
I can tell one thing: the interpreter did not understand his/her job and has a very rigid understanding of her job.
Alina, the phrase “I further certify that… the applicant has understood each and every instruction and question on the form, as well as the answer to each question.”
The interpreter should not take on the liability of someone else’s understanding. That’s the issue. The interpreter’s question is pertinent because the LEP may have answered YES out of fear of having services/help taken away, for example.
Gio,
?????
Have you ever interpret in immigration proceedings? Any of them?
” Regardless
of the interpreter’s level of experience and/or training, it is your responsibility to ensure that everyone present understands the procedures for facilitating interpretation during the interview and that the interpretation contributes to the primary goal of effectively eliciting relevant information during the interview.
It is the interpreter’s role to simply interpret the questions asked and
the responses provided. The interpreter should inform the officer if the
interviewee appears confused at any time during the interview.
Well,
Isn’t it a little different than in the other courts?
That is a good question Lee! Think about it : why should it be different?
Why standards of practice should change according to the setting? it is still the same profession of interpreting in the community, regardless of the setting. Think of other professionals, do their standards of practice change with the setting? Ah, but maybe that is the problem. Maybe we do not see ourselves as professionals and there lies the problem. We are not advocates, we are not social workers, we are not assistants, WE ARE INTERPRETERS!
Another thing to think about too: Don’t all the settings where an interpreter works have legal implications? don’t we sign contracts and merely our presence implies a legal and ethical duty to the assignment and to the profession?
I thank you and everyone for your comments. They are good material to pursue this issue and to further define the role of interpreters in the community, whether is a hospital, immigration office or the courtroom.
Happy holidays!
Catalina
Hi Catalina,
I think that I can answer to your question about the importance of settings.
In criminal, civil, family courts the setting is confrontational, where each party tries to find the other party guilty of an action or inaction, while in immigration proceedings, except EOIR hearings, the setting is NOT confrontational, and yes, we can be very professional interpreters without being rigid in doing our job.
I think it would be interesting to discuss with your students cases where the interpreters are not Spanish interpreters, mostly staff.
We, the others, can be very professional and adapt to the specifics of our language. ie: For a year I have been interpreting for a defendant who has been extradited from Romania. First, I interpreted for the Fed.Court, then, for the attorney and prosecution. Last week I went to the detention center in the same car with the attorney; this morning, the federal prosecutor called me at home asking me when I am available for a proffer, and chatted about trivial things. How many Spanish interpreters face these kind of situations? What makes me less professional than the others? How can my behavior have a negative impact on the legal outcome? Where are the negative implications if you, as an interpreter, do your job and act professionally in each situation?
We, the others, if we are good at what we are doing, are requested to interpret in legal settings, medical, foreign delegations, professional conferences, therefore we are exposed to a multitude of situations that enable us to be more flexible and still professional.
Happy Holidays to all my colleagues!
Thank you for this article. I completely agree with the first scenario you exposed, including the analysis.
The second one regarding Form I-693 feels a little different because the wording of the question re. understanding states “The applicant has informed me that he or she understands every instruction…” It does not force the interpreter to get in the applicant’s mind to know if s/he understands. It just asks the interpreter to assert that the applicant SAID s/he understood, which i think is different.
If an applicant/person I interpreted for does not clearly inform me that he or she understood, I completely agree we should not be signing under penalty of perjury that we know they understood. We don’t know. We could never possibly know (which is why the language in Form I-495 is so problematic). But if the statement we have to sign under penalty of perjury is that the applicant told us they understood, and they did, then I feel more comfortable with it (unless I got a strong feeling that they did not understand, in spite of their words — in that case, ethically i’d feel much more uncomfortable and would likely not sign off).
When in a similar situation, I have modified the “penalty of perjury” language to be clear that i’m only attesting to being told they understand; not guaranteeing they did understand. I think beyond liability, it’s really an ethical and moral question. Even if i thought i’d never be held liable for this, I would not sign it. For one, I believe the system owes those it serves complete clarity and transparency, and masking lack of understanding by signing off on these forms without knowing there is in fact understanding, allows the system (judges, lawyers, and the system as a whole) to continue to make serious decisions in the lives of many folks without ensuring meaningful participation from people caught up in the system. Lawyers also have a responsibility to be the ones to make sure their clients understand, and not pass that on to an interpreter. It’s the lawyer’s duty, not the interpreter’s, and yet, the lawyer isn’t being asked to sign anything stating they know for sure their client understood everything they told them.
Thanks for bringing attention to this. Sorry for the rambling but I found it fascinating. As a lawyer and interpreter, I feel committed to ensuring court users are fully informed and able to participate completely in the matters affecting them.
cristina
Hi Catalina,
Here is another case study you might want to discuss with your students:
AN ETHICAL CONUNDRUM
Some time ago, I faced a real-life situation and I would appreciate it if I could please get your feedback.
The INTERPRETER was hired by the Court to interpret in proceedings regarding an LEP defendant charged for an attempted murder. Since the defendant was indigent, the Court had assigned a Public Defender to represent him. The INTERPRETER interpreted for the Court and the Public Defender. For different reasons, the case dragged on for over two years. Eventually, the Court ordered a psychiatric evaluation (the INTERPRETER worked on it as well) and the defendant was ordered to be confined in a prison-like psychiatric state hospital. The INTERPRETER was hired to spend time with the defendant (6hrs/day for three months). While chatting with the patient, the defendant tells the INTERPRETER about the case and gives details that could be used in his favor or against him. Six months later, once out of the hospital, at the first meeting with his Public Defender, the defendant failed to mention the details he told the INTERPRETER.
The case goes again to court and the Public Defender is not aware of the crucial details.
How would you have reacted in this case? Not quite a textbook case!
Very interesting and full detailed informative article about interpreters liability.
I believe that interpreters have a moral obligation, an ethical duty, not to blindly follow some prescriptive rules, but to facilitate meaningful communication between parties who do not speak the same language. The interpreter who fails to convey information in a way that the LEP individual understands has done nothing to further meaningful language access and the end result is the same as if the interpreter had not been there at all. Whether in legal, medical, or any other setting, the role of the interpreter is to enable two people who do not speak the same language to communicate with and understand each other. Anything less than that is mere window dressing and should not even be called “interpreting.” Having said that, sight-translating a document, asking questions in a foreign language and then writing down answers given by an LEP individual is NOT interpreting, it is something else altogether because interpreting requires two other persons involved in the communicative event. If you are the only person responsible for asking certain questions on a form and then writing down someone else’s answers, then you better be SURE the person understood the questions and, based on that understanding, gave the answers you recorded. Yes, that is totally your responsibility! You cannot wash your hands off and say, “not my job,” because IT IS! But, once more, that job is NOT interpreting, it is something else.