In 2019, The Court of Protection handed down two linked judgements which set out the considerations when assessing mental capacity to use social media and the internet.
What to consider when assessing an individual’s Mental Capacity
When our experts assess capacity, they are required to assess the person’s capacity for a particular decision.
Guidance for assessors of mental capacity is often lacking and deciding what information a person should be able to understand, retain and use and weigh is sometimes open to interpretation from assessor to assessor.
What the experts say
At Expert Court Reports Ltd, we recognise this and our experts are experienced in taking a pragmatic and informed approach; however, we welcome the direction provided by Cobb J.
Cobb J emphasised the importance of the internet and social media to those with disabilities and recognised the risks to persons with disabilities who use the internet. Cobb J concluded that internet and social media use should not form a sub-set of a person’s ability to make a decision and “contact” or “care”. Cobb J concluded that internet and social media use is a different question:
“[t]here is a risk that if social media use and/or internet use were to be swept up in the context of care or contact, it would lead to the inappropriate removal or reduction of personal autonomy in an area which I recognise is extremely important to those with disabilities.”
Cobb J avoided overloading the capacity test for social media internet use. He held that the person being assessed needs to be able to understand, retain and use and weigh the following:
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
Who can carry out a mental capacity assessment?
- Anyone caring for or supporting a person who may lack capacity could be involved in assessing capacity – follow the two-stage test.
- The MCA is designed to empower those in health and social care to do capacity assessments themselves, rather than rely on expert testing by psychiatrists or psychologists – good professional training is key.
- However, in cases involving complex or major decisions (such as court proceedings), you may need to get a professional opinion. This could be a general practitioner (GP) or a specialist (consultant psychiatrist or psychologist).