Social Welfare Update: Assessing capacity to make decisions on use of internet and social media

Tuesday 23 April 2019

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Both decisions deal with the approach to assessing capacity to use social media and the internet, Cobb J taking care to factor in their great importance to many people, and the need to avoid disproportionate restrictions. His ruling that this area of decision-making must be treated as distinct from other contact or care was informed by that concern, and where further steps could be taken to help the person concerned gain capacity, he ruled that this should be attempted before the court considered final declarations. In Re A we see an example of an “internet access and safety” care plan containing restrictions that the court approved as in A’s best interests.

Re A

A was a young man aged 21 who has a learning disability, requiring extensive personal social care support who lived in a supported living setting. There were concerns as to his internet use involving sending of intimate photos and compulsively searching for pornography including on illegal sites. He had made contact with a large number of men, some of whom were known sexual predators and sex offenders and there was a risk that his behaviour would cause him to become a perpetrator of offences concerning internet imagery. 

Cobb J held that he should interpret and apply the domestic mental capacity legislation in a way that is consistent with the United Nations Convention on the Rights of Persons with Disabilities. The 3 types of risks identified in the UK Council for Child Internet Safety’s Guidance “Child Safety Online: A Practical Guide for Providers of Social Media and Interactive Services”: content risk, conduct risk and contact risk,  he held were just as relevant to other vulnerable classes of internet users including those with learning disabilities. 

He ruled that decisions on internet and social media use do not form a sub-set of decisions on contact or care. He held that if swept up in the context of contact or care this would lead to the inappropriate removal or reduction of personal autonomy in an area which was extremely important for those with disabilities, and there are particular characteristics of social media networking and internet use that distinguish them from other forms of contact and care.

Cobb J then set out the “relevant information” which the person needs to be able to understand, retain, use and weigh for the purpose of s 3 MCA 2005 at paragraphs 28 – 30 of his judgment. He held that A lacked capacity to use the internet and social media. 

Turning to A’s best interests, he approved an “internet access and safety” care plan proposed by the local authority which provided for A to use one of the iPads owned by the care provider for a limited period each day, under a degree of supervision; his phone contract was financially capped and his mobile device did not have the capability to access the internet; he had agreed that staff may check his mobile phone for messages on a daily basis to ensure that he was not engaging in inappropriate communications. 

Re B

Miss B was in her thirties and had learning disabilities. She lived with her family, was socially isolated and spent much of her time watching television. She was “wedded to her mobile phone” which she used to communicate via social media, would send intimate photographs of herself and her address to male strangers, “sex chatted” with males, and met and formed a relationship online with a convicted sex offender.

Cobb J determined that Miss B had capacity to make decisions as to her residence, but lacked capacity to make decisions as to her care and about contact (applying the tests set out in LBX v K and others [2013] EWHC 3230). She did not currently have capacity to use social media. She should be offered help to enable her to acquire capacity and in the meantime an interim declaration only would be made. In the event that she remained unable to make decisions in this area, careful thought would need to be given to ways of limiting or supervising her internet and social media use without being unduly restrictive of her rights and freedom of action. 

It was held that Miss B lacked capacity to consent to sexual relations. An interim declaration was made, directing a programme of work to offer her practicable help in this regard.

Read the full judgments here:

Bethan Harris is a member of the Garden Court Chambers Court of Protection team.

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