Shane Ross (Dublin South, Independent)
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122. To ask the Minister for Health the legal situation regarding disputes over next of kin rights in public and private hospitals; the rights of siblings in terms of consultation regarding care of an incapacitated parent; if medical staff always have a final say as to whether an ill person who is not of sound mind is better cared for within a hospital setting or in a family home; and if he will make a statement on the matter. [2396/16]

Leo Varadkar (Dublin West, Fine Gael)
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In May 2014, the HSE published the National Consent Policy. The Policy is concerned with consent to a treatment or intervention conducted by or on behalf of the HSE on patients or service users in all locations. The Policy notes that, in line with the Constitution, European human rights law and ethical standards, consent must be obtained for medical examinations, treatments, services or investigations.

There is no legislation governing disputes regarding rights of next of kin. The HSE National Consent Policy explains that, under Irish law, a family member cannot give or refuse consent to a health or social care service on behalf of an adult patient who lacks capacity, unless the family member has a specific legal authority to do so. Such legal authority includes if the patient has been made a Ward of Court or is the subject of an enduring power of attorney which covers the decision in question.

In making a decision about the care and treatment of a person who lacks capacity, a health and social care professional must determine what treatment or intervention is in the best interest of the patient, with reference to the patient's values and preferences if known.

While family members who do not have a specific legal authority to give or refuse consent cannot make decisions regarding the patient's treatment, the National Consent Policy advises that it may be helpful for the health and social care professional to involve family members in the decision-making process to provide insight into the patent's previously expressed views and preferences and to outline what they believe the patient would have wanted.

The HSE's National Consent Policy may be found at the following link:

The recently enacted Assisted Decision-Making (Capacity) Act 2015 will enable a person (while he or she still has capacity) to prepare an advance healthcare directive in relation to his or her future treatment, which could also include appointing a designated healthcare representative. Under this legislation a person with capacity can also provide for an enduring power of attorney to make certain decisions on his or her behalf should he or she lack capacity in the future. Where a person lacks capacity, the Act provides that the Court may make certain decisions directly on that person's behalf or appoint a decision-making representative to make such decisions. Once commenced the provisions of this Act will replace the existing system of Wardship.

The rights of nursing home residents are protected by the HIQA National Quality Standards, underpinned by the Health Act 2007 (Care & Welfare of Residents in Designated Centres for Older People) Regulations.