March 1, 2019
Although the case below concerns a vulnerable young adult, the criteria for assessing whether someone has capacity to access the internet safely is also relevant to other vulnerable groups, such as elderly LPA donors, who may be financially or emotionally exploited online. It will also be of general interest to deputies and attorneys who may have to decide whether it is in a vulnerable person’s best interests to restrict their internet use.
The Court of Protection has recently set out what information would be relevant when assessing whether an individual had capacity to access the internet and social media safely. In this case, an adult with learning disabilities appeared to be putting himself at risk by contacting strangers over the internet. The court was asked to consider whether it was in his best interests to restrict his use of the internet and social media. In assessing whether he had capacity to weigh up the risks involved, the judge, applying the criteria in section 3(1)(a) of the Mental Capacity Act 2005, identified types of relevant information that P would need to understand, retain, use and weigh to have capacity to assess that risk. P would need to understand that information posted online could be shared with unknown people, that there was a possibility of limiting such sharing through privacy settings on social media platforms, that some images posted might offend others, that people communicated with online might not be who they said they were, that some people posed a risk and could exploit them physically, financially, sexually or emotionally and that sharing some images might involve a criminal offence.
The issue of whether someone had capacity to engage in social media for the purposes of online contact should be considered separately from any consideration of who that person should have contact with generally. However, when assessing capacity to access the internet safely there should be a universal test covering use of the internet to contact others and use for other purposes such as education, entertainment or relaxation.
Case: Re A (Capacity: Social Media and Internet Use: Best Interests)  EWCOP 2 (21 February 2019) (Cobb J).
If you would like more information on Mental Capacity and Deputyships, contact Tayntons Solicitors in Gloucester on 0800 158 4147 to book an initial consultation.