The internet can be a dangerous place for even the most savvy of millennials, but for those who lack sufficient understanding of the risks and legalities of material viewed or shared online the risk of harm increases exponentially.
Recent case law from England suggests that the capacity of vulnerable adults to engage in internet and social media use requires to be assessed separately from capacity for other aspects of daily life.
Two connected Court of Protection judgments highlight the relevant information that an individual should be able to understand to have capacity to use the internet. Although these decisions are under the English Mental Capacity Act 2005, the principles will be of interest to those dealing with adults with incapacity in Scotland.
Separate consideration required
In Re A (Capacity Social Media and Internet Use - Best Interests), the judge first established that the use of internet and social media should form a sub-set of a person's ability to make decisions and should be addressed separately.
The judge reached the clear view that the issue of whether someone has capacity to engage in social media for the purposes of online 'contact' is distinct from general consideration of other forms of direct or indirect contact and should be treated as such. He identified 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 is extremely important to those with disabilities.
What is the test for online capacity?
The judge went on to outline the 'relevant information' on which capacity should be assessed under section 3(1)(a) of the Mental Capacity Act 2005. He held that the relevant information that the individual needs to be able to understand, retain, and use and weigh, to be assessed as having capacity to access the internet and social media, is as follows:
- 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;
- 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;
- 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;
- 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;
- 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;
- 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.
A lack of understanding or limited understanding of these factors is likely to point towards a finding of no capacity.
In the circumstances of Re A, the 21-year-old man was found to lack capacity to use the internet or social media due to the risky behaviour that he had displayed in his internet use and his lack of understanding of the above criteria, including whether or not his online activity is legal.
In the case of Miss B, the judge found that the 30-year-old woman does not currently have capacity to decide to use social media for the purposes of developing or maintaining connections with others but that attempts in the form of practicable help should be offered to enable her to acquire capacity. Until those steps have been taken, the judge made an interim declaration of no capacity.
Throughout the judgments the court emphasised that a determination that a person lacks capacity to access and use the internet imposes a significant restriction upon his or her freedom. Nevertheless, this requires to be balanced with the individual's own safety and the safety of others.
It is interesting to bear in mind that, as with Miss B, there may be support or education that can assist an individual to reach a better understanding of the factors described above and that this should be explored before a final determination that the individual lacks capacity to decide to access and use the internet.
Get in touch
If you are looking for advice relating to the legal position in England on matters of incapacity, please contact Cinzia Duncan.
Cinzia will also be happy to assist with incapacity matters in the context of Scots law.