The development of the internet and social media has fundamentally changed the way in which people exchange information and engage with society.

Use of the internet and social media is said to be of particular importance for people with disabilities, as it can offer opportunities for social inclusion, learning new skills and enhanced autonomy.

However, using the internet and social media can also expose vulnerable people to the risk of abuse and predatory behaviour and the risks associated with accessing inappropriate content. It is therefore important that, when a person lacks the mental capacity to make decisions regarding their use of the internet and social media, steps are taken to ensure that their access to social media or the internet is managed in their best interests.

In serious injury litigation where the Claimant has sustained a severe brain injury, it is increasingly common for a case manager to risk assess the risks of the individual accessing social media and for the relevant medico-legal experts to be asked to comment on their capacity to do so.

The starting point is to consider whether the individual retains or lacks capacity to make the relevant decision. Capacity to make decisions about social media is a standalone issue to be determined; it is not a subset of capacity to make decisions about care arrangements or contact with others.

An individual is assumed to retain capacity to make any decision unless it is established that he lacks capacity [Section 1 (2) of the Mental Capacity Act 2005]. Simply because the proposed decision is unwise, does not mean that the individual should be deemed to lack capacity [Section 1 (5) of the Act].

An individual is deemed to lack capacity if they are unable to understand the information which is relevant to a decision, to retain that information, to use or weigh up that information as part of the process of making the decision or to communicate their decision by whatever means [Section 3 (1) of the Act].

The information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another or failing to make the decision [Section 3 (4) of the Act].

If the individual retains capacity to make decisions about social media, the rehabilitation team and the family can educate and provide advice. However, they cannot stop the person from making decisions.

This is despite the individual making what may seem unwise decisions, some of which could have severe consequences including, for example, a police investigation.

If the individual lacks capacity, any decision about their use of social media must be made by following the best interests decision making process [Section 4 of the Act]. That decision and the restrictions should be documented in the care plan.

The restrictions may include, but are not limited to, parental or content controls, limiting access to devices which can access social media, monitoring the browsing history and supervising or assisting the individual whilst online.

A best interests decision must consider all of the relevant circumstances, permit the individual to participate insofar as possible, and consult anyone engaged in caring for the person or interested in their welfare including a deputy appointed by the Court of Protection [Section 4 of the Act].

In Re. A [2019] WECOP 2, the Court of Protection gave guidance to practitioners about the factors to take into account when assessing what “relevant information” means in connection with assessing capacity to make decisions about social media. The guidelines are 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 Court gave further guidance to assist practitioners to interpret the test:

  • 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; 

  • 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”;
  • 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; 
  • 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.”

In some cases the supervision and control arrangements to manage the person’s use of the internet and/or social media can impact on the person’s liberty and may amount to a deprivation of liberty when taken as a whole.

In these circumstances, strong consideration should be given to seeking expert legal advice and / or ensuring that the relevant Local Authority is notified of the restrictions and the potential deprivation of liberty.

If there is likely to be a lack of capacity to make decisions about social media in the longer-term, consideration should be given as to whether additional costs will arise which will need to be factored into the personal injury litigation.

The additional costs may include additional legal advice and additional deputyship costs particularly if frequent communications with the Local Authority and best interest decisions are required. In addition, there are likely to be additional costs incurred by the case manager and the rehab team to protect the individual.

Mat Culverhouse and David Withers are partners at Irwin Mitchell LLP.