Why do we continue to talk about next-of-kin in medicine?

Mr Niall Rooney writes that the exact nature of the role and the authority, or lack thereof, of a patient’s next-of-kin is generally misunderstood

In January 2018, the advocacy group Sage Ireland commissioned polling company Red C to do a survey of people’s understanding of what next-of-kin meant and what powers a next-of-kin had. 

While 70 per cent of respondents, from a cross-section of society answered, correctly, that next-of-kin is “someone, such as a close relative or friend, who I would like contacted in an emergency”, 57 per cent stated that they understood their next-of-kin to be “someone who can make healthcare decisions or consent to medical treatment if I am unable to”.

More than one in three (35 per cent) respondents believed that next-of-kin was “the only person to be given medical or personal information about me”, while 32 per cent believed that next-of-kin was “someone who can access my bank accounts and assets if I’m unable to”.

The survey findings were insightful and highlighted the significant confusion and level of misunderstanding that exists in relation to what exactly the role of next-of-kin entails.

Origins of the term

The term ‘next-of-kin’ is a legal concept which refers to a person’s nearest blood relatives. It is used in the Succession Act 1965 as a means of identifying those to whom the estate of a person who died without a valid will should be distributed. 

This author is unaware of any Irish statute governing healthcare, consent, or capacity which defines or relies upon next-of-kin as a decision maker. Therefore, a person’s status as next-of-kin does not of itself bestow any authority or legal basis to make any healthcare decision or give consent for any procedure or healthcare treatment when the person is unable to themselves. The next-of-kin is, essentially, an emergency contact only.

Patients lacking capacity

The Assisted Decision Making (Capacity) Act 2015 establishes detailed hierarchies of support and representation for individuals by means of formal decision-making arrangements or court appointment. It does not mention the concept of next-of-kin at all.

Where an individual has been appointed by the court as a patient’s decision-making representative (DMR), the terms of the DMR order can specify that the DMR can make healthcare treatment decisions for the person and their doctors should be given a copy of that order.

Where a person may not be lacking capacity, but requires some assistance or someone to jointly make decisions with them, they can enter into formal written agreements to appoint a decision-making assistant or a joint-decision maker. If you are dealing with either situation, you can ask to see a copy of the written agreement to confirm the existence of and scope of the agreement.

Where a patient has an enduring power of attorney in place in which they have appointed a family member (or another person) known as an ‘attorney’ to make certain personal welfare or property decisions on their behalf, the decision-making powers of the attorney appointed do not extend to healthcare decisions.

Advance healthcare directives

Since the commencement of the Assisted Decision Making (Capacity) Act 2015 in April 2023, patients can make an advance healthcare directive specifying what their wishes are and the type of treatments that they want, or do not want, to receive.

Importantly, the legislation also provides that a patient can choose to nominate a ‘designated healthcare representative’ in their advance healthcare directive, which is a specific and defined role, unlike that of a next-of-kin. A designated healthcare representative appointed under an advance healthcare directive has the power to act on behalf of the patient regarding the particular healthcare treatment decisions set out in their advance healthcare directive. A designated healthcare representative has the power to advise on and interpret the patient’s wishes and they can agree to or refuse treatment on the patient’s behalf, in accordance with the expressed wishes set out in the patient’s advance healthcare directive.

The Medical Council’s Guide to Professional Conduct and Ethics for Registered Medical Practitioners (ninth edition, 2024) (‘the Guide’) states, at paragraph 20.7, that if you are concerned about the validity or applicability of an advance healthcare directive you must follow the provisions of the Assisted Decision Making (Capacity) Act 2015. These include consulting with the designated healthcare representative (if any) or if none has been appointed, the patient’s family and friends, and seeking the opinion of a second healthcare professional.

Ethical considerations

Where no one has legal authority to make a healthcare treatment decision and a patient is unable to make decisions on their own behalf, it may fall to you as their doctor to decide how to manage their medical treatment. The Guide states at paragraph 14.7 that:

“Where a person lacks capacity to make their own decision, you:

▶ Must give effect, as far as is practicable, to the patient’s past and present will and preferences.

▶ Must consider the patient’s beliefs and values and any other factors the patient would be likely to consider if they were able to do so.

▶ Must consider the views of any person named by the patient as a person to be consulted and any decision-making supporter or person with legal authority to act on behalf of the patient.

▶ May also consider the views of any carer of the relevant person, anyone who has a bona fide interest in the welfare of the relevant person, or healthcare professionals.

▶ Must act in good faith and for the benefit of the person.

▶ Must act in a manner that minimises the restriction of the person’s rights and freedom of action.

▶ Must have due regard to the rights of the person to dignity, bodily integrity, privacy, autonomy, and control over his or her financial affairs and property.

▶ Must consider the likelihood of the patient recovering capacity and the urgency of making the intervention prior to, or to promote, such a recovery.

▶ Must ensure that decisions you make are proportionate to the significance and urgency of the situation and are as limited in duration as is possible in the circumstances.”

Deceased patients

It is not uncommon after a patient passes away for their family to request a copy of their records – usually for mundane reasons such as filing a claim with a life insurance company. Frequently the family member will claim to be the deceased’s next-of-kin. However, even if the person was nominated by the deceased to be their next-of-kin, it is only the deceased’s legal personal representative, that is the executor or administrator of the deceased’s estate, who is entitled to a copy of their records or who can consent to their release to a third party directly by a doctor or hospital. While it is of course understandable to want to assist the family at a time of loss, patient confidentiality continues to apply even after the patient has died. It is important therefore to ensure that a deceased’s medical records are only released to someone with the appropriate authority to obtain them. This person is not necessarily the person identified by the deceased on a healthcare form as their next-of-kin.

Conclusion

A person’s closest living blood relative or the person named on a healthcare form as their next-of-kin currently has no legal entitlement to any information about the patient or to make any decision on that patient’s behalf. 

A person’s closest living blood relative or the person named on a healthcare form as their next-of-kin currently has no legal entitlement to any information about the patient or to make any decision on that patient’s behalf

Where a patient lacks capacity and there is no-one with legal authority to make decisions on the patient’s behalf, the individual named as the next-of-kin can, and indeed should if required, be consulted on what the patient’s known preferences, beliefs, and values were. 

If you have any concerns about dealing with a patient’s next-of-kin, and the extent to which you can or should engage with them, you should contact your indemnifier for specific advice.

References available on request