Capacity to engage in social media and internet use

Note taking using a laptop

The new judgement looking at capacity to engage in social media and internet use is now available to view via the British and Irish Legal Information Institute.

A summary of the new capacity to engage in social media and internet use ruling

In the ruling the honourable Mr Justice Cobb outlines the threshold of understanding for capacity to make decisions around internet and social media use 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; [see paragraph below];

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; [see paragraph below];

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; [see paragraph below].

The Honourable Mr Justice Cobb also noted that:

“With regard to the test above, I would like to add the following points to assist in its interpretation and application:

i) In relation to (ii) in [28] above, I do not envisage that the precise details or mechanisms of the privacy settings need to be understood but P should be capable of understanding that they exist, and be able to decide (with support) whether to apply them;

ii) In relation to (iii) and (vi) in [28] above, I use the term ‘share’ in this context as it is used in the 2018 Government Guidance: ‘Indecent Images of Children: Guidance for Young people’: that is to say, “sending on an email, offering on a file sharing platform, uploading to a site that other people have access to, and possessing with a view to distribute”;

iii) In relation to (iii) and (vi) in [28] above, I have chosen the words ‘rude or offensive’ – as these words may be easily understood by those with learning disabilities as including not only the insulting and abusive, but also the sexually explicit, indecent or pornographic;

iv) In relation to (vi) in [28] above, this is not intended to represent a statement of the criminal law, but is designed to reflect the importance, which a capacitous person would understand, of not searching for such material, as it may have criminal content, and/or steering away from such material if accidentally encountered, ather than investigating further and/or disseminating such material. Counsel in this case cited from the Government Guidance on ‘Indecent Images of Children’ (see (ii) above). Whilst the Guidance does not refer to ‘looking at’ illegal images as such, a person should know that entering into this territory is extremely risky and may easily lead a person into a form of offending. This piece of information (in [28](vi)) is obviously more directly relevant to general internet use rather than communications by social media, but it is relevant to social media use as well.

30. I should add that I heard argument on the issue of whether to include in the list of relevant information that internet use may have a psychologically harmful impact on the user. It is widely known that internet-use can be addictive; accessing legal but extreme pornography, radicalisation or sites displaying inter-personal violence, for instance, could cause the viewer to develop distorted views of healthy human relationships, and can be compulsive. Such sites could cause the viewer distress. I take the view that many capacitous internet users do not specifically consider this risk, or if they do, they are indifferent to this risk. I do not therefore regard it as appropriate to include this in the list of information relevant to the decision on a test of capacity under section 3 MCA 2005.”

The TSF threshold for capacity to engage in social media and internet use

Interestingly, at TSF prior to this this judgement we have been setting the threshold for social media as follows;

1) That ‘P’ has an understanding of the basic ‘mechanics’ of how to set up a social media account and post content to it.

2) That ‘P’ understands anything posted to a social media website is public and can be read by anyone unless the account has privacy settings which are set to prevent this.

3) That ‘P’ understands anything posted on social media is potentially permanently accessible and can be copied and shared with others in a manner which is beyond the author’s control, even if the original posting has been deleted by the author.

4) That ‘P’ is able to independently determine what type of material is appropriate or inappropriate to post on social media and that there are risks of committing criminal offences through social media communications.

5) That ‘P’ understands there are risks of being deceived as to the identity or intentions of other users of social media. Whether ‘P’ can understand the potential to use social media to form new contacts with people who are currently strangers to him. That ‘P’ understands the risks of contact with people who are currently strangers to him, including the risks of impersonation or deception via social media, the risks of being harassed or threatened or becoming a victim as a consequence of posting content on social media and other risks.

7) That ‘P’ can identify specific individuals with whom he would like to have contact via social media and what their relationship is with them, what sort of contact he would like to have with them and whether he would need anyone to assist or support him in enabling contact with them. Whether ‘P’ can evaluate positive and negative aspects of contact with specific individuals.

8) That, judging by much of the material posted on social media by those deemed to have capacity, the threshold of understanding required to engage in social media is necessarily low.

We are a driving force in improving the quality of mental capacity assessments and feel excited that this new ruling sits so closely with our own insights, knowledge and expertise.

If you are looking for a mental capacity assessment regarding capacity to engage in social media and internet use please contact the TSF team on 0333 577 7020 for further information and a quote.

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