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Capacity, the Internet and Social Media Conference – Key Points

15 October 2019

Some of the Wrigleys team recently attended the excellent Capacity, the Internet and Social Media conference organised by the Brain Injury Group.  We were treated to very practical and helpful sessions from an eclectic mix of speakers.

The main takeaway points for us were:

  • The concerns we have over vulnerability aren’t unique to the internet , or indeed to people with a brain injury.  Abusive behaviour is nothing new and can be found in many guises, but the internet and social media can give that behaviour a wider reach.
  • Technology isn’t of itself good or bad, but how we use it can have that effect.  For example, social media can have great benefits to people who find it harder to interact socially in person or even in real time, but can also make it easier for those who want to abuse them to do that.
  • The law is in many respects playing catch up in this extremely fast changing technological environment.
  • Technology that has an intended beneficial effect (for example the new video doorbell to your phone technology) can have a more sinister purpose if used by a controlling partner, for example.
  • Our brain injured clients will often find it extremely hard to understand that someone online may not be who they say they are.  It can be hard to get beyond the face value information.
  • There is a mix of civil and criminal law in this area and our clients can potentially be perpetrators as well as victims.  They may not understand the implications of what they post and that could lead to legal problems.
  • Re A and Re B are the cases which confirm that capacity to use social media is to be assessed separately from capacity for care and treatment.  Those cases gave  guidelines on the type of information a person would need to understand to have the capacity to use social media.  However, there is anecdotal evidence that those exact questions are being used to assess capacity rather than tailoring them to the specific circumstances of the person to be assessed. For example, Mr A needed to understand that if he posted certain content that could lead to problems but Miss B didn’t because that wasn’t an issue for her. Some of the things a person needs to understand to have capacity are also quite subjective.  One person’s offensive is another person’s ‘normal banter’.  That isn’t unique to people with brain injuries of course but the subjectivity can make it much more difficult for a person with compromised capacity to judge..  For a discussion of the cases, see here
  • When assessing capacity to use social media, the bar shouldn’t be set too high.  For example, the person needs to be aware of privacy settings but not need to be able to use them independently.  That might seem odd at first, but a straw poll of those in the audience showed that many people without a brain injury don’t know how to set those.
  • The million dollar question – if someone lacks capacity to use social media, how in practical terms do you stop them using it?  Even if their phone was removed, we have experience of people being quite inventive in getting hold of another for example.

All in all a very relevant and thought provoking day.

Lynne Bradey View Biography

Lynne Bradey

Partner
Sheffield

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