By Emma Bond, James Codling and Andy Phippen
As many of us adjust to putting our working lives online, we should also be mindful that a lot of our social world is now facilitated by technology as well. Along with the many positive opportunities this affords, we should be aware of the potential risks, including to vulnerable people, particularly at the current time, as a result of social isolation and a greater reliance on digital technology to live their lives.
Three Court of Protection judgments (Re A, Re B, and the appeal against the Re B judgment) last year provided much food for thought around how to best safeguard adults with accessing and engaging with the online world. Furthermore, they allows us to reflect on the challenges of policing online behaviour, particularly with those who are vulnerable and may also have conditions that affect their mental capacity, without detrimentally and disproportionately affecting their human rights.
Court of Protection guidance
For a summary of, and commentary on, the Court of Protection judgments in Re A, Re B and the appeal against Re B, read this analysis on Community Care Inform Adults, which is available to subscribers to the service.
The outcome of the Re A ruling resulted in a series of “test” questions that the judge, Mr Justice Cobb, put forward as a means to assess whether or not an adult had the mental capacity to engage with social media and online services. The tests say that the person needs to be able to understand, retain, and use and weigh that:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
Whilst we would agree that in principle that this is sensible and pragmatic guidance, we must also recognise that there is a tendency to lack pragmatism when making safeguarding judgments in practice, and instead to apply frameworks such as this as hard-set rules to apply to any given scenario. Reviewing Mr Justice Cobb’s guidance, we are minded to think how many capacitous individuals would be capable, if assessed, of being able to recognise the risks in this list.
By way of illustration, if we take point 4, how many people have believed or trusted the biography of a person on a dating website when they are yet even to meet the person face to face? In addition, and considering point 6, the legal case book grows ever larger in relation to extreme pornography prosecutions of those without mental capacity issues who are not aware of the illegality of the images, or even that they had retained images.
Setting the bar for understanding or using or weighing in these situations at this level will make application of the MCA unworkable as it will create unrealistic expectations that even a person with mental capacity could not meet.
When we reflect upon our time working in online child safeguarding, we can see emerging parallels with growing concerns for vulnerable adults and internet access, with practitioners looking for simple guidance that can be uniformly applied. We fear that the online adult safeguarding space risks becoming part of the safeguarding dystopia manifest among children and young people by professionals wishing to keep them “safe” at all costs.
We see Mr Justice Cobb’s guidance as welcome, and much needed for practitioners, with the caveat that it should be viewed as just that: guidance. It is not a hard and fast set of rules to be applied in all situations that should lead to the withdrawal of digital rights in the event of “failure” to meet any of the tests.
With the hope of supporting health and social care professionals in this area the University of Suffolk and Cambridgeshire County Council are undertaking a collaborative research exercise with Alex Ruck Keene, a barrister specialising in mental capacity law.
The research will initially explore the experiences of professionals working in adult social care, of supporting people with intellectual disabilities or autistic spectrum disorder to engage with the online world and their experiences and perceptions of ‘risk’ in this area.
It will also explore what education and training health and social care professionals have accessed so far, and what training tools or resources would improve professional knowledge in this area. It will also include the development of initial guidance for professionals to access, based on the findings from the research.
A longer version of this article is available here.
Emma Bond is director of research and professor of socio-technical research at Suffolk University; James Codling is Mental Capacity Act and Deprivation of Liberty Safeguards training and development manager at Cambridgeshire council; Andy Phippen is professor of children and technology at Plymouth University.