A recent judgement of the Court of Protection has set out the legal test for capacity for the use of the internet and social media.
In the particular case, concerns had been raised about an adult with learning disabilities who appeared to be putting himself at risk by contacting strangers via the internet. The Court was asked to consider whether it would be in his best interests to restrict his use of the internet and social media.
The judge referred to the provisions of the Mental Capacity Act 2005 as the basis to identify the types of information that an individual would need to understand, retain and use in order to be said to be able to assess the risks they may face when accessing the internet and their social media accounts.
The judge stated that an individual would need to understand that information posted online could be shared with anyone, that there was a possibility of limiting such sharing through privacy settings on, for example, social media platforms, that some images posted might offend others, that people communicating online may not be who they say they are and that some people could pose a risk to them, whether through potential physical, financial, sexual or emotional abuse and that sharing some material might involve potential criminal offences.
The judgement went on to say that the test of capacity for social media should be differentiated from any day-to-day social contact an individual might have. It went onto express the view that when assessing capacity to access the internet safely, there should be a universal test to cover the use of the internet for other purposes, such as education or entertainment.
Although this case concerned a vulnerable young adult, the Court’s judgement provides welcome clarity which could be applied in a number of situations. For example, the test of capacity would also apply to an elderly person, who may be just as much at risk online from financial or other forms of exploitation. Therefore, this judgement will be of interest to anyone acting as a deputy or attorney or indeed the families of vulnerable adults who may have concerns regarding the use of the internet by a family member or friend.
If you would like to discuss the issues raised in this blog or indeed issues regarding the Court of Protection or lasting powers of attorney in general, please contact Patrick Green on +44 (0)20 734 3000 or patrick.green@colmancoyle.com.
