Mental Capacity: Social Media, the Internet and Best Interests

The use of the internet is becoming an increasingly popular method of communicating with other.  Friends, family, work colleagues, strangers with whom we’ve developed a shared interest and dare I suggest, people in the same house as us all receive our attention using an ever increasing range of social media platforms.  I was, at this stage, going to list some but the need to perform an internet search to be able to list more than the top 5 probably means that I am wise not to.  Preventing a person from using platforms that have become part of every day life (and in some instances the primary source of communicating with others) is a serious matter and should only be considered where absolutely necessary.  According to Public Law experts at law firm Simpson Millar, restrictions on internet or social media use could be a significant breach of a person’s Article 8 rights if not provided for in the individual’s care plan, properly authorised by the Court and subject to regular review.

In a judgement handed down by The Honourable Mr Justice Cobb on 21/02/2019 (Re A (Capacity: Social Media and Internet Use: Best Interests)), he grappled with such matters and provided some detailed guidance which will assist Social Workers or anyone who assesses the mental capacity of someone to make decisions about social media and internet use.

An interesting point that Mr Justice Cobb made was in relation to the ‘salient’ factors that should be considered.  The ‘salient factors’ is the information that a person should be able to understand, retain, weigh-up and communicate in order to make the decision.  The Mental Capacity Act 2005 (MCA 2005) is clear that a person should be able to understand, retain, weigh-up and communicate the necessary information only, not peripheral details that aren’t necessary to make the decision, because by doing so would set the threshold of understanding too high.  One matter that Mr Justice Cobb considered in this case was whether the salient points should include details about the potentially harmful psychological effects that internet and social media use may have on a person.  He concluded that many capacitous people don’t consider this risk, or are indifferent to it.  Therefore, it wasn’t appropriate to include it in the list of information relevant to this decision.

Mr Justice Cobb also considered whether online ‘contact’ is distinct from other forms of direct or indirect contact.  On this question, he concluded;

I am satisfied that wider internet use is different from general issues surrounding care.  There is a risk that if social media use and/or internet use were to be swept up in the context of care or contact, it would lead to the inappropriate removal or reduction of personal autonomy in an area which I recognise is extremely important to those with disabilities.  As the Court of Appeal made clear in PC v NC and City of York Council [2013] EWCA Civ 478 at [35], the court should consider the issues reasonably specifically:

“ The determination of capacity under MCA 2005, Part 1 is decision specific…. all decisions, whatever their nature, fall to be evaluated within the straightforward and clear structure of MCA 2005, ss 1 to 3 which requires the court to have regard to ‘a matter’ requiring ‘a decision’. There is neither need nor justification for the plain words of the statute to be embellished .”

When assessing a person’s mental capacity to make decisions about social media and internet use, a list of relevant information is necessary to establish whether a person can understand, retain and weigh-up the relevant information. In this judgement, Mr Justice Cobb provided such a list:

1. 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;
2. It is possible to limit the sharing of personal information or images (and videos) by using ‘privacy and location settings’ on some social media and internet sites (the precise details or mechanics of the privacy settings don’t need to be known, just that they are there and could be accessed with support);
3. 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;
4. 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;
5. 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;
6. It 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;

If you would like any assistance assessing the mental capacity of someone in relation to social media and internet use, or would like assistance developing care plans about social media and internet use that promote autonomy please feel free to contact me.