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Debunked: No, you can't give someone medical power of attorney with a 'Notice of Standing and Fact'

A medical law expert has cast a withering eye on a document that’s circulating online.

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This article was updated on 28/09/2021 to add a response from the Office of the Secretary to the Governor General of Canada.

VIDEOS AND DOCUMENTS shared on social media falsely claim that a patient can sign “medical power of attorney” over to someone else using a “Notice of Standing And Fact” form.

The letter is being shared on platforms including Facebook and Telegram by people who are sceptical about Covid-19.

Various claims are being made about the form, including that it gives anyone who signs it the right to discharge another person from hospital if that person also signs it.

At least two discharges or attempted discharges against medical advice have occurred at Irish hospitals in recent days. The Irish Association for Emergency Medicine says attempts by persons without medical expertise to interfere with clinical care are “both undesirable and frankly dangerous.”

Coronavirus sceptics are encouraging people to carry the document on their person in case they need it at short notice to sign their medical power of attorney over to someone else or to assume it from another person.

The claims are entirely false. Power of attorney over health matters cannot be created in this way.

notice-main

In Irish law, two different types of power of attorney are allowed under the Powers of Attorney Act, 1996, but neither of them cover healthcare decisions.

The first allows the attorney to take actions on the person’s behalf in relation to property, business and financial affairs. 

This form of power of attorney is created when signed by the person in the presence of a witness. It is no longer valid if the person becomes mentally incapacitated.

The second, enduring power of attorney (EPA) only comes into effect if the person becomes mentally incapacitated. However, several conditions have to be met in order to create this.

Statements from the person creating the EPA and the person being given power of attorney are required along with statements from a doctor and a solicitor.

These statements have to verify that the person has the mental capacity to create the EPA, that they understand the effect of creating it and that they are not under undue influence.

The EPA also has to be created before the person becomes incapacitated. While EPAs do not cover healthcare decisions they can include “personal care decisions”.

The distinction between personal care decisions and healthcare decisions is not always clear. However, the form being shared on social media fails to meet several of the criteria required to create an EPA. 

‘Bizarre’

“You can’t make decisions on behalf of someone who has capacity,” explained Dr Adam McAuley, a law lecturer in Dublin City University’s School of Law and Government.

“If a person has capacity and they want to discharge themselves from hospital, even if it’s contrary to medical advice, they can do that themselves. Nobody else can do that on their behalf. If they don’t have capacity, nobody can make that decision. 

You can’t just rock up to a hospital with a piece of paper that says you’re there to discharge somebody. If the person has capacity then it’s that person’s decision.

Dr McAuley said that a doctor could simply ignore the document that’s circulating as it has no legal basis. A patient is entitled to leave hospital if they wish, even if it’s contrary to medical advice.

The person who signed the document being circulated is entitled to assist the patient in leaving the hospital (as they would be without the document) but they have no right or entitlement to intervene on their behalf.

The medical law expert also gave a withering assessment of the so-called ”Notice of Standing And Fact”. 

“I don’t know why anybody would draft a document like that. It’s bizarre, the way it’s written. If a first year law student drafted that I’d be very upset by it. It doesn’t make any sense,” Dr McAuley said.

Dr Eileen Culloty of DCU’s Institute for Future Media and Journalism said that conspiracy theorists have targeted hospitals throughout the coronavirus pandemic, fuelled by the “FilmNearHospitals” hashtag on social media.

At earlier stages of the public health crisis, this hashtag saw Covid deniers filming empty hospital wards and claiming it was evidence that the virus wasn’t real. In reality, this was simply because normal hospital operations had been cancelled.

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More recently in the United States, people have visited hospitals to demand that patients be treated with the drug ivermectin, which is unproven as a treatment for Covid-19.

In Ireland and the UK people have tried to remove patients from hospital care, often against their doctor’s advice.

“‘Film near hospital’ activities were started by leaders in the anti-lockdown movement, but it’s really sustained by ordinary citizens who’ve fallen into these rabbit hole conspiracy theories,” Dr Culloty said.

Throughout Covid there has also been a tendency to share these legalistic documents in order to make claims about people’s legal rights or their position under the Constitution; the basis of it is often pretty dubious. 

Coat of Arms

An eye-catching element of the document being circulated by Covid sceptics is the grand looking coat of arms at the head of the page.

The symbol features a medieval looking knights’ helmet, a maple tree, a crest with four stars and a stag and a doe.

A trawl of heraldic histories revealed that this antique-appearing symbol was actually created in the year 2000, when it was granted to Barbara Uteck by the Canadian Heraldic Authority.

Uteck, who once served as Secretary to the Governor General of Canada, featured the colours of the flag of Ukraine in the crest as a nod to her maternal family, while the deer were suggested by her husband to honour his Scottish roots.

A spokesperson for the Office of the Secretary to the Governor General of Canada thanked The Journal for bringing this matter to its attention.

“It appears that Ms Uteck’s arms were chosen randomly to give an official appearance to the document, in spite of the fact that it clearly states that consent is required to reproduce these images,” spokesperson Samantha Lafleur said.

The Journal’s FactCheck is a signatory to the International Fact-Checking Network’s Code of Principles. You can read it here. For information on how FactCheck works, what the verdicts mean, and how you can take part, check out our Reader’s Guide here. You can read about the team of editors and reporters who work on the factchecks here.

Have you gotten a message on WhatsApp or Facebook or Twitter that you’re not sure about and want us to check it out? Message or mail us and we’ll look into debunking it. WhatsApp: 085 221 4696 or Email: answers@thejournal.ie 

About the author:

Céimin Burke

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