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| 4 minutes read

Capacity to tweet?

In two judgments (Re A and Re B) Cobb J has confirmed that capacity to make decisions about internet and social media use do not form a "subset" of of a person's ability to make decisions about care or contact.   Capacity to use the internet and social media are "inextricably linked; the internet is the communication platform on which social media operates.  For present purposes, it does not make sense in my judgment to treat them as different things.  It would, in my judgment, be impractical and unnecessary to assess capacity separately in relation to using the internet for social communications as to using it for entertainment, education, relaxation, and/or for gathering information."

 Cobb J also identifies the "relevant information" which a person needs to be able to understand, retain, and use or weigh as follows:

"28. It is my judgment, having considered the submissions and proposals of the parties in this case and in Re B , that the ‘relevant information’ which P needs to be able to understand, retain, and use and weigh, is 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]."

He added:

"29.               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, rather 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."

The judge did not include as relevant information the fact that internet use can be addictive or otherwise harmful, noting that many adults with capacity do not consider, or are indifferent to, this risk.

He went on to approve arrangements for the supervision of A's internet use and for a programme of work to support B in gaining capacity in this area.

Comment: It is welcome to have clarity that decisions in this area- which Cobb J described as particularly important for those with disabilities, and engaging rights under Articles 9 and 21 of the UNCRPD - should no longer be shoe-horned into assessments of capacity to make decisions about care arrangements or contact with others.  As such, restrictions on social media and internet use will not form part and parcel of arrangements permitted by a standard authorisation under DOLS, or in future by an authorisation under the forthcoming Liberty Protection Safeguards.   Those who are delivering or commissioning care packages which include such restrictions on those who lack may capacity to consent to them should ensure that assessments of capacity to make decisions about internet and social media use have been carried out.   This task is simplified by the identification of the relevant information in the judgments.  If the person concerned lacks capacity, can education be provided to support them gain it? What arrangements are in the person's best interests?  Depending on the level of the restrictions and the impact of these on the person concerned, a separate application to the Court of Protection may be necessary.   As well Articles 9 and 21 of the  UNCRPD, rights under Articles 8 and 10 of the European Convention on Human Rights may also be engaged.

The internet is, or can be, a dangerous place; it has a dark side, where dehumanising and illegal material (including images, pseudo-images, videos, live-streaming and text) is all too readily accessible.