Capacity & Social Media: how to deal with capacity in a modern world

12 June 2019

As technology continues to evolve and social media becomes an ever growing presence in our daily lives, deputies and attorneys are faced with new challenges on how best to safeguard 'P'. The court most recently dealt with this in the case of Re B whereby a woman in her 30s was using social media to find herself a boyfriend. Unfortunately, the men she was talking to and subsequently meeting with made repeated requests for money, one had a history of domestic abuse and the other was a convicted sex offender.     

The question was whether, amongst other things, 'P' had capacity to use the internet and social media. Mr Justice Cobb provided some guidance on what information 'P' would need to be able to understand, retain, use and weigh in order to have capacity to use social media. This included an understanding that information, images and videos which you share can be shared more widely i.e. with people you don’t know.

People with disabilities, and in particular those that lack capacity, can find accessing the wider world tougher than those who are more able and therefore careful thought must be given to restricting their access to social media when they lack capacity to use the internet and social media. Practically restrictions might mean that parental locks are placed on the account or that social media use is supervised. 

However, any restrictions put in place are an interference with P's Article 10 and 8 rights under the European Convention of Human Rights and therefore they must be justified and proportionate. The court was clear if the interference is not justified and proportionate then it will be unlawful. 

It is a difficult balance to strike. Whilst P must be safeguarded from harm, they must be safeguarded in the least restrictive way possible. Deputies and attorneys need to be aware of the relevant law surrounding capacity to use the internet and social media and give careful thought when making a decision in relation to P's best interests. 

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