Is there a role for next of kin?

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

Whether admission to our hospital is recorded on paper or electronically, we faithfully record the patient’s ‘next of kin’. Is this useful information?

Patients may naturally wish to identify a person for the hospital to contact, useful for arranging their discharge, or to deal with other domestic arrangements. The clinicians will also wish to have a nominated person with whom they can communicate if their patient deteriorates to the point where their capacity is lost. Who should the patient, on being admitted, identify as their next of kin?

The simple answer is anyone they choose - ideally a person who is readily contactable, and whom the patient is confident will act in a sensible way. The difficulty is that since the ‘next of kin’ has no legal status, being undefined in English law, there is no other guidance we can give. In particular, there is no distinction between blood relatives, family, friends and acquaintances. The person who’ll best do the job may be unrelated to the patient...perhaps it’s the man who walks their dog.

Since the role is not defined in law, it is unsurprising that the next of kin has no powers. However, clinicians must seek information as to the wishes, feelings and beliefs of an incapacitated patient. It is sensible to begin this search with the person nominated as next of kin, although this quest may well become more extensive.

We have all seen the distress and disruption caused when a patient identifies, as their next of kin, someone of whom factions in the family strongly disapprove. This can lead to unseemly dispute, and clinicians should liaise with the nominee, whilst advising them to share the information they have been given with the rest of the family. This is doubtless a difficult situation, sharpened by the general public’s certain but mistaken belief that the next of kin has determinative status.

A rather easier situation arises where the patient has arrived lacking capacity, unable to decide on ‘next of kin’. The hospital record may thus stand empty, or the most interested accompanying person (relative or otherwise) may have identified themselves, and now appear on the record. This self-appointment may not sit well with subsequently attending family members. In either situation, all those who befriend the patient should be given the same information, bearing in mind the obvious rules on confidentiality. Since the patient has not identified a particular spokesperson, we are unable to do so on his or her behalf. In practical terms, when faced with numerous befrienders, the simplest course is to suggest to the first few seeking information that they spread what news can be disclosed to those interested.

The phrase 'next of kin' originated in English property disputes in the sixteenth century, and to this day provides in American statute an order of precedence for those relatives wishing to inherit property from a person who dies intestate (without having made a will). The situation is similar in Ireland. By contrast, English intestacy rules stipulate who will inherit an individual’s estate, but not in terms of next of kin. The phrase has not appeared in English statute for many years. The Mental Health Act 1959 (and its successors) defines ‘nearest relative’, whilst the Human Tissue Act 2004 notes ‘qualifying relationships’, to name only two of many statutes where interpersonal relationships are of vital importance, but in which no recognition is given to next of kin. Judges use the phrase in court, but only as plain language, giving it no specific legal meaning.

Any adult (including a clinician) might ponder who they would wish to nominate in the event of their own incapacity. One answer lies in the Lasting Power of Attorney, a creation of the Mental Capacity Act 2005. The LPA allows us all to identify a person who can represent our wishes (and in some circumstances our refusal of treatment) on the advent of our incapacity, providing the donee of the LPA with powers entirely unavailable to the next of kin.

Robert Wheeler
Department of clinical law
May 2019