Social media – love it or hate it, it’s here to stay.
In recent years, the use of the internet and social media to interact with others has grown and is now part of many people’s everyday life.
When used safely and appropriately, it can be a way of connecting with the outside world and having a wealth of information available at our fingertips. But the relative anonymity on social media platforms has also brought about on-line stalking, bullying and the uploading of private images, which can have a devastating effect on people’s lives.
Harmful content on social media has been much in the news recently. At the time of writing this article, the hashtag #bekind is trending following the tragic death of Caroline Flack, where social media comments posted in the months leading up to her death, came under the spotlight as a contributing factor to her mental health.
The Government has said it will look to bolster the powers of OFCOM to force social media providers to act on harmful content and Pope Francis has encouraged people to give up insulting people on social media for Lent.
Mental Capacity and Social Media
In 2019 Brain Injury Group held events around the country focussing on the tricky topic of the use of social media for those who lack mental capacity following the recent case of Re B in the Court of Protection and the Court of Appeal ( EWCOP 3 and  EWCA Civ 913 respectively). In this ongoing matter, Miss B’s use of social media has formed a significant part of the case.
Miss B is a vulnerable adult. She has, in the past, befriended a convicted sex offender and sent intimate photographs of herself to people who she did not know well. The matter initially came before the Court of Protection following a difference of opinion about whether Miss B had capacity in relation to her use of social media and whether the Court and the Local Authority could intervene to stop her putting herself at risk.
The Court was asked to decide whether Miss B had the capacity to make decisions surrounding her use of social media. The Court received expert help and assessments from Miss B’s social worker and a consultant psychiatrist with a specialism in child and adolescent mental health.
The Court provided a checklist of things someone would need to be able to understand in order to make their own decisions on use of social media. This list included use of privacy settings, “friends” on social media not necessarily being friendly to you and content you share with someone may be spread more widely on the internet.
The Court found that Miss B was unable to make her own decisions in relation to her use of social media and the Local Authority will now have the ability to make decisions on Miss B’s use of social media. This could include measures such as imposed supervision, use of filters and using apps with parental controls. However, the Court of Protection stated that any decision must comply with Miss B’s human rights to freedom of expression and privacy and her rights under the United Nations Convention on the Rights of Persons with Disability. This was also backed up by the Mental Capacity Act which requires those who are thinking of making a decision on behalf of someone else to use all efforts to allow the person to make their own decision.
The Official Solicitor, representing Miss B, accepted the finding that Miss B lacked capacity to engage in social media but appealed the checklist approach of the Judge. The Court of Appeal, dismissing the appeal of the Official Solicitor, observed,
“Whether the list or guideline of relevant information is shorter or longer, it is to be treated and applied as no more than guidance to be adapted to the facts of the particular case”.
Would you pass the test?
There was much discussion at our events last year about the checklist approach, and in particular the use of privacy settings. People at each event admitted that whilst they know privacy settings exist, they don’t necessarily know where to find them, how to set them or what settings exist on each different social media platform. Would you know where to find your privacy settings and are yours set appropriately?
This article has been written in conjunction with John Holdsworth
John Holdsworth is a Chartered Legal Executive at Brain Injury Group member firm, Barcan + Kirby. He specialises in adult protection and issues dealt with by the Court of Protection. John has appeared in contested applications before the Court of Protection in both financial and healthcare matters.
About Brain Injury Group members Barcan + Kirby
Barcan + Kirby have multiple offices in Bristol. Their brain injury team assist clients across England and Wales, providing a friendly and approachable service to support claimants. For more information, find Barcan + Kirby in our Find a brain injury Solicitor section https://www.braininjurygroup.co.uk/find-brain-injury-solicitor/south-west/barcankirby-queen-square-bristol/
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