
Eleanor Tallon, 12 July 2024
I recently met with Jeff Goodright (cyber security specialist), and we had an intriguing conversation on the evolving issue of online safety and mental capacity. We identified some of the risks people face, we observed some of the paternalistic approaches to managing risks, and we discussed the ways to proactively support and enable people to enjoy the cyber world whilst minimising harm and abuse.
What are the risks?
Online risks are universal, more specifically they are risks that we ALL face when we use social media and the internet. These include:
Identity theft: Common due to the use of identical passwords across multiple accounts.
Scams and financial abuse: Includes bogus emails and texts (such as missed parcel deliveries).
Online grooming and sexual exploitation: Targeting individuals for virtual sexual acts.
Accessing illegal content: Such as explicit material on the dark web.
Cyberbullying, radicalisation, and extremism: Targeting those who may be vulnerable to influence and coercion.
Mental health impact: Overuse of social media and the internet can negatively affect mental health.
Most people reading will have experienced one or more of the above. I have personally experienced identity theft and I contacted the police, which was incredibly stressful. There have also been times when I have needed to cut out social media and internet use for a period (getting off my laptop and out into nature was a healthy antidote!)
But what about individuals who have a mental impairment, which could make it harder for them to recognise and address the various risks that are present when engaging in digital communication?
The issue around online safety is prevalent. There are many situations where individuals with cognitive, behavioural and mental health support needs are at risk from others who pose harm, or have engaged in criminal activity, with limited awareness of their actions or the consequences.
Jeff spoke about one individual who had an acquired brain injury (let’s call him Tom). Tom articulated well and was previously assumed to have capacity around his online use, so no support was put in place. However, Tom couldn’t control his impulses and he ended up being arrested for his online activities. We discussed that a fuller assessment of the risks, Tom’s online support needs, and a 3-dimensional consideration of capacity should have been considered at an earlier stage.
How do we respond to online risks?
Initially, we must accept that a level of risk is part of life. We must also recognise that people who appear to struggle to manage online risks, should be offered support to work out the best way to avoid harm whilst still being able to enjoy the positive aspects of the cyber world.
Individuals need appropriate explanation and enablement, to decide on what support they need, so that they can give informed consent to the support plan.
The person should be involved in any risk assessment process and a co-produced safety plan. It may be that support teams and professionals need specialist advice or training on cyber safety, to ensure they are offering safe and effective care.
Where the person is placing themselves at significant risk of harm to themselves or others, safeguarding concerns should be shared with the relevant authorities.
When would an MCA be required?
Where all practicable efforts have been made to support a person (aged 16 or over) to manage their safety online, and there is a reasonable belief to doubt decision-making capacity around social media and internet use, a mental capacity assessment (MCA) would be required.
The MCA must be completed by a suitably trained professional, who can competently apply the legal process and principles of the MCA (2005); and the applicable case law around social media and internet use Re A [2019], Re B [2019] and Re C [2020].
The relevant information as determined by legal guidance:
1) 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;
2) 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;
3) 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;
4) 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;
5) 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;
6) 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.
If a person is determined as being unable to decide on how to manage their social media and internet use, then a support plan would need to be decided in their best interest under the MCA.
Legal advice must be sought for any support plan which imposes specific restrictions on the person’s social media and internet use (which impose on Article 8 rights to private life), it is very likely that these types of restrictions would need to be authorised by Court of Protection.
Consider human rights!
There are lots of benefits derived from networking on social media and from accessing the internet. Consider how isolated and disconnected you might feel if your access to the internet and social media was restricted?
It is important to note how much digital, media, and information literacy empowers individuals, as it allows the effective exercise of a wide range of human rights, including the rights to seek, receive and impart information and ideas, as enshrined in the Universal Declaration of Human Rights [United Nations, 2023]
Human rights do not get ‘switched off’ just because a person is unable to make the specific decision.
Supported decision-making
Capacity isn’t a definitive concept; it is much more transient and granular. The person should never be boxed in, under the heading ‘lacks capacity to use the internet’.
There may be areas the person can manage with additional support. For example, the person might be capable of using WhatsApp or sending emails but may have significant problems using Facebook or Instagram where their visibility is more widely exposed. But there are ways to support privacy and manage content.
For many (if not all) people, maintaining contact with others is massively important. Sometimes, possibly due to a brain injury or other deterioration in health, the person’s previous social circle diminishes over time. Social media and online interaction might become the main source of positive connection and this needs to be supported.
Take-away thoughts
Taking any steps to restrict internet and social media use must be lawful, have a legitimate basis (through an appropriate risk assessment) and must be proportionate to the risks. It should be the least restrictive option and only implemented as a last resort.
The support plan should also be focused on supporting the person to regain their capacity on the specific decision/s. This should be reviewed in the quickest time frame possible with a clear plan of education in place to maximise autonomous decision-making around online interaction.
If you have any queries about cyber risk assessments, safety planning, or cyber safety training please get in contact with:
Jeff Goodright at Cyber Spider email jeff@cyber-spider.co.uk
If you have any queries on independent mental capacity assessments, please get in contact with:
Eleanor Tallon at MCA Professional email eleanor@mcaprofessional.co.uk
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