As is well known capacity is time and decision specific. Providers will be aware that errors are often made in the way that the Mental Capacity Act is implemented which result in at the very least criticism from family members, commissioners, Adult Safeguarding and CQC.
A recent case, Re A, has set out that there is a specific test to apply to capacity and use of internet and social media. Details of which and a further judgment, Re B,considering similar issues are set out below in order to assist providers to update working practices.
Summary of background circumstances
Court of Protection proceedings were commenced in 2017 when concerns emerged in relation to A’s capacity to make decisions regarding residence, care, contact and internet use. Concerns in relation to use of the internet arose in 2016 when his parents discovered he had used his Facebook account to share intimate photographs and videos with others. When unsupervised A is said to compulsively search for pornography and has developed an interest in paedophilic images and extreme sexual activity.
Miss B’s use of social media had been the cause of repeated concern to her adult social care workers. She had been known to send money, intimate photos and readily provide information such as her address to male strangers.
The test is set out as follows in Re A:
[…] 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
The judge did not envisage precise details or mechanisms of privacy settings needed to be understood, but rather P needed to understand that such mechanisms exist and be able to decide whether to apply them.
It is also important to note that in considering online risk and its relevance for those who lack capacity, the judge was referred to descriptions of online risk as set out in the UK Council for Internet Safety’s Guidance, ‘Child Safety Online: A Practical Guide for Providers of Social Media and Interactive Services’. The judge determined that the risks identified were just as relevant to other vulnerable classes of internet users, including those with learning disabilities.
Use of internet and social media is likely to be an issue that a provider’s staff may be involved in on a regular basis and therefore it would be advisable to have an appropriate policy in place for staff to refer to. It will be important to set clear expectations as regards how and where capacity decisions are to be recorded. Training may also be useful.
Internet access and safety plans
Where service users are considered to lack capacity, care plans in the service user’s best interests will be required. In Re A, the judge approved the access plan in A’s best interests which was provided to the Court by the Local Authority in draft, regarding A’s use of iPads and his mobile phone. This plan included supervised use of the iPad for set periods and provision for staff to check his phone each day to assist him deal with unwanted messages. It was noted that the staff working with A are attuned to ensure a high degree of vigilance around their own devices and were said to be aware that A was canny in deleting call and message history.
In Re B, the judge commented that interference such as use of filters or supervision would have to be proportionate, justified and not unduly restrictive. Providers should factor in those considerations when drafting such a plan for Service Users.