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Mental capacity and the use of the internet and social media

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HCPC guidance on social media - think before you post

In the recent Court of Protection case of Re: A [2019] 3WLR 59, Cobb J outlines the relevant and irrelevant information for the purposes of deciding whether a person has capacity to make decisions about internet and social media use.

The case concerned a 21 year old man who identifies as a gay male. He has a learning disability, a mental impairment in adaptive social functioning and executive functioning.

Concerns about the man's internet use first arose in 2016 when he was living at home with his parents. His parents discovered that he had used his Facebook account to share intimate photographs and videos of his genitals with unknown males. The man's low level of literacy and written communication skills impaired his ability to navigate the internet safely, leading him to extreme pornographic sites that he had accessed by clicking on a series of suggested links.

The man later developed an interest in sites showing paedophilic and extreme sexual activity, however he cannot read nor understand the warnings regarding content and safety.

Mental capacity is decision specific i.e. a person may have capacity make one decision, but lack capacity to make a different decision. The ‘test’ to be applied when assessing a person’s capacity is set out in sections 2 and 3 of the Mental Capacity Act 2005. This includes a ‘functional test’ which states that a person is unable to make a decision if he is unable to (a) understand the information relevant to the decision (b) retain that information (c) to use or weigh that information as part of the process of making the decision or (d) to communicate his decision.

The ‘information relevant to the decision’ varies depending on what the decision is that needs to be made and some guidance has been provided by judges in case law. In the case of Re:A, Cobb J established the relevant information that a person needs to be able to understand, retain, use and weigh, and communicate in order to have capacity to decide whether to use the internet and social media.

Cobb J at paragraph 28 of the written judgment stated that "the 'relevant information' which P needs to be able to understand, retain and use and weigh, is as follows:

i) Information and images (including videos) which you share on the internet or through social media could be shared more widely, including with people you don’t know, without you knowing or being able to stop it;

ii) It is possible to limit the sharing of personal information or images (and videos) by using ‘privacy and location settings’ on some internet and social media sites;

iii) If you place material or images (including videos) on social media sites which are rude or offensive, or share those images, other people might be upset or offended;

iv) Some people you meet or communicate with (‘talk to’) online, who you don’t otherwise know, may not be who they say they are (‘they may disguise, or lie about, themselves’); someone who calls themselves a ‘friend’ on social media may not be friendly;

v) Some people you meet or communicate with (‘talk to’) on the internet or through social media, who you don’t otherwise know, may pose a risk to you; they may lie to you, or exploit or take advantage of you sexually, financially, emotionally and/or physically; they may want to cause you harm;

vi) If you look at or share extremely rude or offensive images, messages or videos online you may get into trouble with the police, because you may have committed a crime."

Cobb J commented at paragraph 31 that the man in this case "had a “limited” understanding of privacy settings", "he had a “poor” understanding of the risks which people might pose on line, and could not understand that people may disguise their identity to take advantage of him".

Cobb J continued to conclude his judgment by stating that the man lacks capacity to use the internet or social media. Cobb J also approved the local authority's draft 'internet access and safety' care plan which allows the man to use one of the iPads owned by his care providers for a limited period each day, under a degree of supervision by staff, and access to a mobile device which does not have access to the internet.

The internet is now an important part of people’s lives, including vulnerable adults with mental impairments. This judgment highlights the importance of steps being taken to assess a person’s capacity to decide to use the internet and social media, should there be any reason to believe that the individual lacks capacity due to a mental impairment. It is essential that a capacity assessment is undertaken to safeguard the vulnerable adult from coming to any harm whilst using the internet.

Megan Taylor, graduate paralegal in the Court of Protection team