Capacity, social media and the internet

Posted on Wednesday, April 17th, 2019

On 18 March 2019, Christine Marsh and Julie Fitzpatrick had the pleasure of attending The Annual Patterson Property & Affairs Court of Protection Conference in Manchester arranged by Kings Chambers, where they heard from Sam Karim QC and Francesca P. Gardner regarding the two linked judgements in Re A: (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP 2 and Re B: (Capacity: Social Media: Care and Contact) [2019] EWCOP 3.

In his judgment, Cobb J recognised the central importance of the internet and the use of social media to those with disabilities, including by reference to the Convention on the Rights of Persons with Disabilities (CRPD). He also identified the potential for risks online.

In Re B, Cobb J was asked firstly to consider whether, in undertaking a capacity assessment, internet and social media use should form a sub-set of a person’s ability to make a decision about either ‘contact’ or ‘care’. He concluded that capacity as to internet and social media use was a different question entirely.

Having identified the decision, Cobb J was then tasked with determining the relevant information that P would be expected to be able to understand, use, weigh and retain to make the decision. He identified the following as the relevant information:

  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 internet and social media sites; [see paragraph below];
  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; [see paragraph below];
  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. 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…’

This judgment provides much needed clarity for practitioners going forward. Not only are they now able to know exactly what they are assessing capacity for, but they know how to measure it. Furthermore, adult social care services and other professionals will be able to take steps to help P make decisions over their social media contact and internet use which will hopefully result in a reduction in risk to vulnerable adults.

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