Next of Kin

8 November 2023

next of kin - two women sat at a table looking though documentationThe term "next of kin" lacks any legal standing and carries no special authorities or responsibilities. Frequently, we encounter this term in the realm of healthcare and social services, often one of the initial inquiries when someone registers as a new patient. In this context, "next of kin" should be understood as the designated point of contact.

Once it is clear that "next of kin" holds no legal weight, it becomes evident that there are no set rules dictating who can assume this role. Occasionally, disputes arise concerning the designation of "next of kin," such as in the case of an unmarried partner. The choice of "next of kin" is entirely at the discretion of the patient or service user, as they nominate the individual they wish to serve as their primary point of contact.

In the context of the Mental Capacity Act 2005 (the 2005 Act), misunderstandings regarding "next of kin" can lead to professionals misapplying the Act when an individual lacks capacity.

In cases where an individual cannot make a specific decision for themselves, there is a responsibility to act in their best interests. However, being designated as the "next of kin" does not confer decision-making authority regarding best interests or the ability to provide consent for care or treatment on behalf of the individual. As previously mentioned, the term "next of kin" does not grant any special powers or responsibilities to that individual.

The role of decision maker for best interests in the context of care or treatment can be fulfilled by a family member, friend, or partner, but only if they have been formally appointed through a valid and applicable Lasting Power of Attorney (LPA) for health and welfare or a health and welfare deputyship order from the Court of Protection.

In the absence of a valid and applicable LPA or deputyship order, the organization or individual proposing a course of care or treatment assumes the role of decision maker for best interests. Under the 2005 Act, there is an obligation to consult with "anyone engaged in caring for or interested in the welfare of the person," in addition to anyone appointed under an LPA or deputyship order or anyone designated by the person as a consultative party.

The 2005 Act does not use the term "next of kin." It emphasizes the importance of involving a wide range of individuals in the decision-making process for best interests. This group may encompass parents, siblings, children, partners, caregivers, friends, and neighbours. Exclusively engaging with a "next of kin" may inadvertently exclude others who should be part of the best interests assessment.

Similarly, unless they possess a valid and applicable LPA or deputyship order, the designated "next of kin" lacks the authority to exclude others from participating in decision-making, contact, and information sharing. When there are strained family relationships, managing this situation can be challenging. Ideally, families and friends should reach a consensus on a point of contact and information sharing. Nevertheless, caution is warranted when a "next of kin" instructs staff not to share information with other family members. As we now understand, being the "next of kin" does not grant them the power to prevent this, and standard information governance procedures should be followed.

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