Capacity and the Internet

The internet provides us with the benefits of communication, knowledge, learning and entertainment and can provide people with a platform to express themselves. The United Nations Convention on the Rights of Persons with Disability highlights the importance of Internet use for those with disabilities and how it can help them overcome the barriers they may face in day-to-day life. Sadly, the internet can also be dangerous for vulnerable people. People with learning disabilities are more susceptible than others to online grooming and sexual exploitation and with developing technology there are evolving risks that come with internet use. It has therefore been necessary to address the concerns of how those with disabilities should be protected from the potential risks of internet use.

When assessing someone’s capacity to make specific decisions the Mental Capacity Act 2005 (MCA) makes it clear that it is necessary to assess each type of decision independently, and not on a person’s ability to make decisions in general. This means a person may lack capacity to make major decisions, such as how to deal with their finances, but this does not necessarily mean they lack capacity to make day to day decisions, such as what to eat or which film to watch. The types of decisions that have typically been assessed in relation to capacity are care, contact, support and treatment, financial matters and day-to-day living.

When determining whether a person has capacity to make decisions about social media and the internet, there have been two recent cases. Re A (Capacity: Social Media and Internet Use: Best Interest) and Re B (Capacity: Social Media: Care and Contact) which highlight the important factors that need to be considered when assessing whether a person has capacity to make decisions in this area.

In Re A it was decided that the use of the internet and social media should be assessed as a separate category to any decision making category stated above. Just because a person has been found to lack capacity in areas such as contact, this does not mean that they automatically lack capacity when it comes to Internet and social media use. The category must be assessed separately, and only then can a decision be made as to whether a person has capacity to make decisions in this area.
The court decided that the information that a person should be able to understand, retain and use to weigh up should be:

• That the 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;
• That 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;
• That if you place material or images (and videos) on social media sites which are rude or offensive, or share those images, other people might be upset or offended;
• That some people you meet or communicate with 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;
• That some people you meet or communicate with 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 to take advantage of you sexually, financially, emotionally and/ or physically; they may want to cause you harm; and
• That 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 case of Re B also addressed the issue of internet and social media use. In this case it was highlighted that although a person may lack capacity during a specific period, this does not mean they lack capacity indefinitely. It was reiterated that capacity is time and function specific and can fluctuate from time to time. It is therefore necessary that practical help to assist with a person’s capacity be offered and regular assessments should be carried out.

The two judgements provide clarity as to what should be considered when assessing capacity in this area. It highlights the importance of protecting those with vulnerabilities from potential risks of internet use, whilst also highlighting the positive attributes it provides. With this well needed guidance, practitioners will be more aware of what needs to be considered when assessing capacity for internet and social media use, something that has only needed to be considered in recent years due to the rapid growth in technology.