How should capacity to use social media be assessed?

The internet, and particularly social media, can provide disabled persons with a great opportunity to express themselves, learn new skills and information, locate support, and interact with others. Sadly, it is not without its dangers.

The NSPCC reported this month that over 5,000 online child grooming offences were recorded by police in England and Wales. Children, however, are not the only members of society that are vulnerable to malicious users. In the recent linked cases of 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, Cobb J has tackled the issue of assessing capacity for internet use and social media contact in vulnerable adults.

A is a man in his 20s with impaired social adaptive and executive functioning, living independently with substantial social care support. For several years there have been concerns raised about A’s use of social media to share intimate imagery of himself with unknown individuals. Staff working with A also report that A has a compulsion to search for pornography, with an increasing tendency towards websites displaying paedophiliac and extreme illegal activity. A’s literacy levels and understanding are extremely low, and he is assessed as being unable to read or understand the content warnings displayed on pornographic websites.

Sadly A has previously been the victim of rape and, during the related investigation, police and social workers became aware of A’s browsing history. The investigation also uncovered evidence that A had made contact with a large number of geographically discrete strangers, some of whom were known sexual predators and offenders. Rightly, concerns were raised at that time that A was at risk of a) abuse, and b) unknowingly committing offences relating to illegal imagery.

B is a woman in her 30s with learning difficulties and epilepsy, living with her parents and sibling and in receipt of some community support. Cobb J noted that “she is somewhat socially isolated”. Over the past three years, concerns have been raised to adult social care workers about B’s sending of intimate imagery to strangers via social media. B has also provided personal information to these individuals and, it is suspected, has sent money to them. As with A, B is known to have made contact with individuals with offending history in this way.

More recently, B’s behaviour has brought her into contact with a male in his 70s, who is a convicted sex offender subject to a Sexual Harm Prevention Order. Unlike previous occasions, B’s relationship with this individual has progressed to a ‘real-life’ one, causing authorities significant concern. Cobb J ruled on a number of those concerns, which are perhaps best discussed separately. In respect of social media use Cobb J noted that capacity assessments had been attempted by professionals, but results were inconsistent.

Social workers, care co-ordinators, case managers, and medical practitioners will be familiar with the functionality test described in section 3 of the Mental Capacity Act 2005 (‘MCA 2005‘). When assessing capacity, the assessor must consider whether P can understand, retain, and use information relevant to a decision as part of the decision-making process. P’s ability to communicate that decision should also be assessed. Typically, decisions fall into certain categories (such as contact, financial, living arrangements) in which the “relevant information” necessary is widely understood by practitioners.

Fundamentally, Cobb J has ruled that the question of an individual’s capacity for internet use and social media contact is distinct from other categories. Furthermore, his judgement in Re A provides a list of what he considers to be the ‘relevant information’ for the purposes of the functionality test. That is:

• 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 (and 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 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 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

• 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.

Cobb J found that A lacks capacity to use the internet and social media, and approved a best interests decision restricting his use of devices for such purposes and requiring supervision. B, he found, lacks capacity at present to use social media for the development and maintenance of connections with other. He made an interim declaration to that effect, with the intention that practical steps be taken to help her to develop capacity.

Comment

This judgement will doubtless be of significant use to 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 others will be able to create resources and action plans around this test, with the intent of taking all practical steps to help P make decisions over their social media contact and internet use (as required by Section 1(3) MCA 2005). Hopefully this will result in greater consistency and a reduction in risk to vulnerable adults.