There has certainly been a rise and development of the internet and social media over recent years. This has changed the way in which we communicate with each other. Electronic devices such mobile phones are now used across the world for communication, entertainment, education, relaxation and for gathering information. There are an ever growing number of social media apps.

Arguably the internet and social media are even more important to people who have a disability and or difficulties with social communication. However, the internet can be a dark place with illegal material readily accessible. Internet abuse is common place and can take many forms including bullying, sexual grooming and personal identity theft.

In the recently reported case of Re A (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP2, the Court of Protection sets out the information P must be able to understand, retain, use and weigh up to have capacity to access the internet and social media safely.

Background:

P is a young adult and identifies as a gay man. P had learning difficulties with low levels of literacy. He resided in a supported living placement where he received extensive support. Without support, P would be unable to manage his personal and domestic care needs.

What was the case about?

Court of Protection proceedings had been instigated by the local authority when concerns emerged about P’s capacity to make decisions about his residence, care, contact with others and internet use.

Concerns had been raised about P’s internet use. He had shared intimate photos with unknown men on social media and had accessed extreme pornography and images of child abuse. P had also made contact with sex offenders. The police were concerned P could commit offences of unlawful distribution of images due to his lack of understanding. Practical steps had been taken to help P understand the issues, without success.

The Court’s decision:

The Court was asked to consider whether it was in P’s best interests to restrict his use of the internet and social media.

In assessing whether P had capacity to weigh up the risk involved, the judge applied the criteria set at section 3(1)(a) of the Mental Capacity Act 2005.

The judgment sets out the relevant information which P needs to be able to understand, retain, use and weigh. For example:

“i) information and image s(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”

The issue of whether someone had capacity to engage in social media for the purposes of online contact should be considered separately from any consideration of who that person should have contact with generally. However, when assessing capacity to access the internet safely there should be a universal test covering use of the internet to contact others as well as using the internet for other purposes such as entertainment or education.

Having considered the evidence available, the judge was satisfied that P did not have capacity to use the internet or social media. This is not just ‘unwise’ behaviour. As a result, the Court approved the local authority’s plan for P to have limited access, under a degree of supervision, to the internet.

On the other issues, the judge decided that P had capacity to decide on his residence and consent to sexual relations but that he lacks capacity to litigate, in relation to his care and support package and contact, and in the management of his property and finances.

What if I have concerns about a vulnerable person?

Although this case concerns a young adult, the criteria for accessing the internet and social media safely will be relevant to other vulnerable groups including the elderly.