The use of social media has increased dramatically over the past year, with people using it more frequently to maintain contact during COVID-19-related lockdowns. The rise of social media networks has already reshaped the way we engage with each other and with society. People who are vulnerable and have disabilities have identified the internet and social media as essential for access to information, entertainment and for maintaining contact with like-minded individuals while largely confined to their homes (Re A (Capacity: Social Media and Internet) [2019]).
Access to electronic devices and digital technology for people with disabilities is considered a right under the United Nations Convention on the Rights of Persons with Disabilities, where article 9 requires states to take appropriate measures to enable those with disabilities::
‘To live independently and participate fully in all aspects of life … [including] access, on an equal basis with others, … to information and communications, including information and communications technologies and systems.’
Article 21 further requires that:
‘Persons with disabilities are able to exercise the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice by encouraging the mass media, including providers of information through the Internet, to make their services accessible to persons with disabilities.’
Although access to the internet and engaging with social media can be of great benefit, it also carries risks and can be dangerous, with illegal material and the potential for abuse common and difficult to monitor. Such dangers have resulted in a number of cases being brought to the Court of Protection.
Mental capacity and social media
In early 2019, two cases concerning mental capacity to engage with social media came before the Court of Protection, which gave the court the opportunity to characterise contact via social media as a discrete form of contact that differed from contact cases previously considered by the court.
Under the provisions of the Mental Capacity Act 2005, to rebut the presumption of capacity to make a particular decision under section 1, a capacity assessor must be satisfied, on balance, that the person is unable, because of an impairment or disturbance to the mind or brain (Mental Capacity Act 2005, section 3 (1)), to:
A person's level of understanding
The first step of the functional test of mental capacity requires the person to understand at least the salient information relevant to the decision they are being asked to make. Relevant information will differ depending on the decision and the specific facts of a case. Because the Court of Protection distinguished internet and social media contact from other forms of contact, more precise information needed to be identified to fairly test the person's understanding.
In Re A (Capacity: Social Media and Internet) [2019] and B v A Local Authority [2019] the court held that the relevant salient information a person needed to understand, retain, use and weigh to satisfy the functional test of capacity included:
The Court of Protection considered those salient details in Re A (Capacity: Social Media and Internet) [2019] that concerned a 21-year-old man with learning difficulties and very low levels of literacy who had shared intimate photographs of his genitals with unknown men on social media, and had accessed extreme pornography and images of child sex abuse. He had been unable to read or understand warnings online regarding content and safety. He had attended educational sessions designed to help him understand internet safety, but continued to access inappropriate sites and associate with the perpetrators of sexual exploitation online.
The court held that the man lacked capacity to use the internet and social media because of a significant impairment in using and weighing information due to his learning disability.
The court found A to be trusting and easy to manipulate on the internet and unable to understand possible motives behind identity-disguise. He only partially understood privacy settings and the potential for wider information-sharing. Although knowing that criminality arose from viewing or sharing certain things, he could not assess illegality or comprehend that accidental viewing might also be unlawful. He also lacked an understanding of what constituted a child, which placed him at risk of entering into intimate relationships online or in reality with minors.
More recently the Court of Protection held that a 19-year-old with an autistic spectrum disorder lacked capacity to make decisions regarding his compulsive interest in practising autoerotic asphyxiation and posting internet and social media messages about his desire to be kidnapped and raped. His inability to weigh information about the risks at which he was putting himself satisfied the court that, rather than making unwise decisions, he lacked the capacity to make those decisions and this necessitated the deprivation of his liberty in his supported living placement (AA (Court of Protection: Capacity to Consent to Sexual Practices) [2020]).
In B v A Local Authority [2019] a 31-year-old woman with learning disabilities lived with her parents and required support to maintain her safety when communicating with others. She had sent intimate photographs of herself and communicated personal information to male strangers via social media, and routinely had sex chats with males. It was through that behaviour that she had met a man in his seventies who had been convicted of multiple sexual offences. He was aware of B's learning difficulties and said that he wished to marry her. B said she wanted to live with the man.
The Court of Appeal held that B lacked capacity to engage with social media because her learning difficulty prevented her from understanding abstract concepts such as motive and stranger danger. She had a rigid belief that the people she met on social media were her friends and good people. Deceit and harmful intent were not something that she understood and further education of internet safety had not improved her understanding.
The Court of Protection has recently confirmed that it has the power to issue an injunction against a person who represents a risk to a person who lacks capacity. In Re SF (Injunctive Relief) [2020] the court issued an injunction against a man who visited a woman with autism and learning disabilities with whom he had communicated on social media. The court held that the woman lacked capacity to use social media and to engage in contact with the man, and issued an injunction forbidding the man to have further contact with her.
The causative nexus
For the Court of Protection to rebut the presumption of capacity there must be sufficient evidence that the person is unable to meet one or more of the requirements of the functional test under section 3 because of an impairment or disturbance to the function of their mind or brain. That is, the causative nexus has to be satisfied and the inability to make a decision must be because of that impairment or disturbance to the mind or brain (PC v York City Council [2013]).
In A local authority v RS [2020] the Court held that a man with autism and a mild learning disability had capacity to make decisions concerning his residence, his care, his contact with others and his use of the internet and social media. He had indulged in risky behaviour in pursuing his sexual interests, but that had amounted to the taking of unwise decisions as opposed to being capacity related. The court held that at no point did the local authority provide evidence as to why those incidents showed that RS was unable to understand, retain, use or weigh the information relevant to each decision as distinct from other possible reasons for his unwise and risky behaviour.
Conclusion
Although the use of the internet and social media have been essential in maintaining contact during lockdown, the use of such digital tools is risky and at times dangerous. The Court of Protection distinguishes contact over the internet from other forms of contact because of these risks and dangers. In a series of cases the court has developed a checklist for the salient information that needs to be understood, retained, used and weighed by people undergoing an assessment of their capacity to engage with the internet and social media that can now be used in practice and will assist assessors in determining whether there is evidence to rebut the presumption of capacity set out in section 1 and 2 of the Mental Capacity Act 2005.