“Next of Kin” Is Not Consent: What Nurses Must Get Right Under the Mental Capacity Act 2005

A nurse prepares to provide treatment to an adult who appears unable to understand the decision.

The patient’s daughter says, “I’m the next of kin. I can sign.”

The form is signed and placed in the records.

But one essential question has not been answered:

Does the daughter have legal authority to make this decision?

Being recorded as next of kin does not automatically give a relative authority to consent to or refuse healthcare, medication, personal care, accommodation or other decisions for an adult.

A signature does not correct a legally defective decision-making process.

This is where nurses, healthcare assistants and adult social care professionals can unintentionally cross an important legal boundary.

Scope of this article

This article concerns people aged 16 and over and the Mental Capacity Act 2005, which applies in England and Wales.

Most provisions of the Mental Capacity Act apply to young people aged 16 and 17 as well as adults. However, some provisions require a person to be aged 18 or over. In particular, a person must be 18 or over to make a Lasting Power of Attorney or an advance decision to refuse treatment under the Act.

Scotland and Northern Ireland operate under different legal frameworks. Organisations delivering services across the UK must ensure that staff follow the legislation applicable to the location where care is provided.

The legislation and regulation involved

The Mental Capacity Act 2005 provides the statutory framework for making decisions with or on behalf of people who may lack capacity.

The accompanying Mental Capacity Act Code of Practice provides statutory guidance. Nurses, healthcare professionals and paid care workers are among those legally required to have regard to the Code when acting for a person who may lack capacity.

For CQC-regulated services in England, Regulation 11 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 requires care and treatment to be provided with lawful consent.

Where a person aged 16 or over cannot consent because they lack capacity, the provider must act in accordance with the Mental Capacity Act 2005.

CQC states that it can prosecute breaches of Regulation 11 without first issuing a Warning Notice.

That enforcement power applies to registered providers. Individual nurses may separately face professional, employment, civil or—in serious circumstances—criminal consequences depending on what occurred. Poor documentation does not automatically mean prosecution, but it can expose unlawful practice that is difficult to defend.

The five statutory principles

Every decision under the Mental Capacity Act 2005 must begin with its five statutory principles.

1. Presume capacity

A person must be presumed to have capacity unless it is established that they lack capacity for the specific decision.

Age, dementia, learning disability, mental illness, communication difficulty, admission to hospital or residence in a care home does not automatically establish incapacity.

2. Provide practicable support

A person must not be treated as unable to decide until all practicable steps to support decision-making have been attempted without success.

This might include:

• Using plain language.
• Breaking information into manageable parts.
• Providing pictures or accessible information.
• Using hearing aids, glasses or communication equipment.
• Arranging an interpreter.
• Treating pain, delirium or reversible distress.
• Choosing a quieter location.
• Returning at a more suitable time when the decision is not urgent.

3. Respect unwise decisions

A person must not be treated as lacking capacity simply because their decision appears unwise, unusual or inconsistent with professional advice.

Capacity concerns the person’s ability to make the decision—not whether staff agree with the outcome.

4. Act in the person’s best interests

Anything done or decided for a person who lacks capacity must be in that person’s best interests.

Best interests is a structured legal process. It is not simply what the family wants, what staff prefer or what is easiest for the service.

5. Choose the least restrictive option

Before acting, consider whether the purpose can be achieved in a way that restricts the person’s rights and freedom less.

Capacity is decision-specific and time-specific

Capacity is not a permanent label.

A person may be able to decide what to eat but lack capacity to understand a complex surgical procedure. Someone experiencing delirium may lack capacity today but regain it after treatment.

The correct question is not:

“Does this person have capacity?”

It is:

“Can this person make this particular decision at the time it needs to be made?”

How capacity should be assessed

The Mental Capacity Act 2005 uses a two-stage test.

Stage one: Is there an impairment or disturbance?

Determine whether there is an impairment of, or disturbance in, the functioning of the person’s mind or brain.

This could arise from dementia, delirium, brain injury, stroke, learning disability, unconsciousness, intoxication or another condition.

Stage two: Does it make the person unable to make this decision?

The impairment must be the reason the person cannot make the specific decision.

A person is unable to decide if they cannot:

• Understand the relevant information.
• Retain that information long enough to decide.
• Use or weigh the information as part of the decision.
• Communicate the decision by any available method.

A diagnosis alone is insufficient. Staff must demonstrate the functional connection between the impairment and the inability to decide.

What does “next of kin” actually mean?

“Next of kin” is commonly used as a contact or relationship description.

It may identify the person staff should contact during an emergency or someone who knows the individual’s history, wishes, beliefs and normal behaviour.

However, next-of-kin status does not automatically create legal decision-making authority.

A spouse, adult child, parent or sibling may provide valuable information and should normally be consulted where appropriate. Consultation is not the same as consent.

The relative’s view must be considered as part of the best-interests process, but it does not automatically determine the outcome.

When can another person make the decision?

A relative or another person may hold legal decision-making authority when they are:

A registered health and welfare attorney

A person aged 18 or over may previously have appointed an attorney through a registered Lasting Power of Attorney for health and welfare.

The authority must cover the decision being considered and can only be used when the person lacks capacity to make that particular decision.

A property and financial affairs LPA does not automatically authorise healthcare decisions.

Special authority is required for decisions involving life-sustaining treatment.

A Court of Protection-appointed deputy

A deputy may have authority where the Court of Protection order covers the particular health or welfare decision.

Staff must verify the scope of the court order. The word “deputy” alone is insufficient.

Acting under a specific Court of Protection decision

For serious disputes or particularly complex decisions, the Court of Protection may make the decision directly.

Acting through a valid and applicable advance decision

A person aged 18 or over may have made an advance decision to refuse treatment while they had capacity.

If it is valid and applies to the proposed treatment and circumstances, healthcare professionals must respect it. Additional statutory requirements apply where life-sustaining treatment is refused.

Who decides when there is no authorised representative?

Where a person lacks capacity and there is no applicable advance decision, health and welfare attorney or authorised deputy, the relevant professional normally becomes the decision-maker for the care or treatment they are responsible for providing.

For medical treatment, this is generally the doctor or healthcare professional responsible for the proposed intervention.

For a nursing or day-to-day care decision, the nurse or care professional responsible for that action may be the decision-maker.

The decision-maker must:

• Apply the best-interests checklist.
• Involve the person as far as possible.
• Consider the person’s wishes, feelings, beliefs and values.
• Consult appropriate relatives, carers and others.
• Consider whether the person may regain capacity.
• Choose the least restrictive effective option.
• Record the reasoning and decision.

The professional does not simply ask the family to sign and transfer responsibility to them.

An everyday example

Mrs Khan is offered a change to her medication. She appears confused and cannot initially explain what the medicine is for.

Her son says, “I am her next of kin. I consent.”

The unsafe response

The nurse asks the son to sign the form and records:

“Consent obtained from next of kin.”

This is legally weak because it does not establish:

• Whether Mrs Khan had capacity.
• What support she received.
• Whether the son held legal authority.
• Whether an LPA or advance decision existed.
• Who made the decision.
• How best interests were determined.

The lawful approach

The nurse pauses the process and identifies the exact decision.

Mrs Khan is supported with simple explanations, appropriate timing and her hearing aid. Her capacity is assessed in relation to this specific medication decision.

The son’s legal authority is checked rather than assumed.

If Mrs Khan can make the decision, her decision must be respected.

If she lacks capacity and her son is a registered health and welfare attorney with authority covering the decision, he may decide within that authority and in her best interests.

If he has no legal authority, his knowledge and views should still inform the best-interests process—but he does not become the decision-maker merely because he is her son.

What nurses and adult care professionals must do

Identify the exact decision

Avoid broad statements such as “lacks capacity for care.”

Specify the actual decision: accepting medication, receiving wound care, using bedrails, moving accommodation or agreeing to a particular investigation.

Support the person first

Do not move directly from uncertainty to a capacity assessment.

Record the practical support provided and whether it improved the person’s ability to decide.

Verify legal authority

Ask whether an LPA, deputyship order or advance decision exists.

Inspect the relevant document or verify it through the organisation’s approved process. Confirm that it is valid, active and covers the specific decision.

Do not rely solely on a relative saying, “I have power of attorney.”

Separate consultation from consent

Relatives may know the person better than staff and their information can be essential.

Record their views accurately, but do not describe consultation as consent unless that person holds verified authority to decide.

Complete a defensible best-interests process

Best interests must focus on the person—not staffing convenience, family preference or organisational routine.

Consider the person’s previous statements, current responses, values, cultural and religious beliefs, risks, benefits and less restrictive alternatives.

Use an IMCA when required

An Independent Mental Capacity Advocate may be required for certain serious medical treatment or long-term accommodation decisions where the person lacks capacity and has nobody appropriate to consult.

Safeguarding situations and local advocacy duties may create additional requirements.

Escalate disagreement

Disagreement between professionals and relatives does not automatically give either side the final answer.

Use senior clinical review, safeguarding procedures, legal services, ethics support, mediation or the Court of Protection where appropriate. Urgent legal advice may be required for serious unresolved disputes.

Record the reasoning—not merely the form

A signed form is not a substitute for lawful decision-making.

The record should show:

• The specific decision.
• Why capacity was questioned.
• Support provided.
• Capacity-assessment findings.
• Documents and authority verified.
• People consulted.
• The person’s wishes, beliefs and values.
• Options and less restrictive alternatives considered.
• The decision-maker.
• The final decision and reasons.
• Review arrangements.

Documentation that should raise concern

Avoid entries such as:

• “Daughter consented as next of kin.”
• “Family agreed, so care continued.”
• “Patient has dementia and cannot consent.”
• “Son has POA”—without verifying its type or scope.
• “Best interests discussed”—without recording the reasoning.
• “Patient refused but family agreed.”

These statements may conceal an absent capacity assessment, unverified authority or an incomplete best-interests process.

What if treatment is urgent?

Urgent and immediately necessary treatment should not be dangerously delayed while staff search for a relative.

Where the person lacks capacity, professionals may be protected when providing necessary care or treatment if they reasonably believe the person lacks capacity and reasonably believe the action is in the person’s best interests.

However, staff must still consider known valid and applicable advance decisions, authorised attorneys, court orders and any other relevant legal restrictions.

Follow emergency procedures and obtain senior or legal advice as soon as circumstances allow.

The essential message

A relative can be:

• An important source of information.
• Someone who should be consulted.
• An advocate for the person.
• A legally authorised decision-maker in specific circumstances.

These roles are not interchangeable.

The phrase “next of kin” does not prove decision-making authority.

Before recording that someone has consented on another person’s behalf, stop and establish:

Does the person have capacity?

What support has been provided?

Who is the legal decision-maker?

Has their authority been verified?

Is the decision genuinely in the person’s best interests?

The safest documentation is not “next of kin consented.”

It is a clear record showing how the law was applied.

Further reading

• Mental Capacity Act 2005 Code of Practice
• CQC Regulation 11: Need for consent
• NHS: Assessing capacity and consent to treatment

This article provides general education for practice in England and Wales. It is not individual legal advice. Professionals must follow current legislation, organisational policy and appropriate clinical or legal advice.