Court of protection provides guidance on the assessment of capacity in relation to social media and internet use


Re A (Capacity: Social Media and Internet Use : Best Interests) [2019] EWCOP 2  and Re B (Capacity: Social Media: Care and Contact) [2019] EWCOP 3: In two linked judgments Mr Justice Cobb addresses what amounts to ‘relevant information’ under MCA 2005 s. 3 (1) (a) when assessing P’s capacity in relation to social media and internet use.

Background

The case of Re A concerned a 21-year-old gay man with a learning disability who lived in a supported living placement. Court of Protection proceedings were instigated by A’s local authority due to concerns about his capacity to make decisions about care, residence, contact with others and internet use. A had a history of using his Facebook account to share intimate photos and videos of his genitals with unknown males. When unsupervised he was also known to search compulsively for pornography on the internet, accessing sites showing extreme and sometimes illegal sexual activity including paedophilia. He had made contact with a large number of men, some of whom were known by police to be sexual predators and sex offenders. As well as being at risk of sexual exploitation he was also at risk of becoming a perpetrator of sexual offences due to his lack of understanding around the subject.

The second case, Re B, concerned a woman in her 30’s with a learning disability and epilepsy. She lived with her family and had considerable social care needs. B is described as ‘wedded to her mobile phone’ and her use of social media in recent years had caused considerable concern to her social care workers. B was known to send intimate photos and sexually explicit messages and to give out personal information about herself to men not known to her, who she described as her ‘boyfriends’. It was through this behaviour that she met Mr C, a man in his 70’s who was a convicted sex offender. B refused to accept that Mr C posed a risk to her and met up with him several times and confided in her social worker that she wished to have Mr C’s baby.

Mr Justice Cobb was the presiding judge in both cases – which were heard within days of each other.

Decisions around access to the internet and social media

A key issue which arose in both cases was how the capacity test set out in MCA s.3 should apply to decisions around access to the internet and social media, in particular,  what information falls within the category of ‘information relevant to the decision’ which a person is required to understand, retain, use or weigh in order to make a decision. Cobb J addressed this at length in his judgment in Re A then went onto apply the same test in Re B.

In Re A, Cobb J was of the clear view that the issue of whether someone has capacity to engage in social media for the purpose of online ‘contact’ is distinct from general consideration of other forms of direct or indirect contact and that the issue of wider internet use is distinct from general issues surrounding care:-

There is a risk that if social media use and/or internet use were to be swept up in the context of care or contact, it would lead to the inappropriate removal or reduction of personal autonomy in an area which I recognise is extremely important to those with disabilities.

However, Cobb J acknowledged the risks that internet and social media use can present: –

It seems to me that there are particular and unique characteristics of social media networking and internet use which distinguish it from other forms of contact and care […] in the online environment there is significant scope for harassment, bullying, exposure to harmful content, sexual grooming, exploitation (in its many forms), encouragement of self-harm, access to dangerous individuals and/or information – all of which may not be so readily apparent if contact was in person.

Cobb J recognised that use of the internet and the use of social media are inextricably linked and should therefore be treated as one and the same for the present purpose.

The next key question which arose in Re A was ‘what is the relevant information under section 3 (1) (a) MCA 2005 on which the issue should be assessed?’ In answering this question Cobb J said that he was careful not to overload the test with peripheral detail but to limit it to the salient factors – ‘in applying that discipline, I am conscious that a determination that a person lacks capacity to access and use the internet imposes a significant restriction upon his or her freedom.’

Having considered the submissions and proposals of the parties in both cases, Cobb J laid down in Re B the ‘relevant information’ which P needs to be able to understand, use and weigh in order to make a decision to use the internet and social media:-

  • i) 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;

  • ii) 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;
  • iii)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;

  • iv) 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;

  • v) 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;

  • vi) 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.

Cobb J then made the following points to assist in the interpretation and application of the above test:-

  • i) In relation to (ii) above, I do not envisage that the precise details or mechanisms of the privacy settings need to be understood but P should be capable of understanding that they exist, and be able to decide (with support) whether to apply them;

  • ii) In relation to (iii) and (vi) above, I use the term ‘share’ in this context as it is used in the 2018 Government Guidance: ‘Indecent Images of Children: Guidance for Young people’: that is to say, “sending on an email, offering on a file sharing platform, uploading to a site that other people have access to, and possessing with a view to distribute”;
  • iii) In relation to (iii) and (vi) above, I have chosen the words ‘rude or offensive’ – as these words may be easily understood by those with learning disabilities as including not only the insulting and abusive, but also the sexually explicit, indecent or pornographic;

  • iv) In relation to (vi) above, this is not intended to represent a statement of the criminal law, but is designed to reflect the importance, which a capacitous person would understand, of not searching for such material, as it may have criminal content, and/or steering away from such material if accidentally encountered, rather than investigating further and/or disseminating such material. Counsel in this case cited from the Government Guidance on ‘Indecent Images of Children’ (see (ii) above).  Whilst the Guidance does not refer to ‘looking at’ illegal images as such, a person should know that entering into this territory is extremely risky and may easily lead a person into a form of offending. This piece of information (in vi)) is obviously more directly relevant to general internet use rather than communications by social media, but it is relevant to social media use as well.’

Cobb J considered that an understanding by P that internet use may have a harmful psychological impact on the user, was not ‘relevant information’ in the context of a decision about internet use: –

It is widely known that internet use can be addictive; accessing legal but extreme pornography, radicalisation or sites displaying inter-personal violence, for instance, could cause the viewer to develop distorted views of healthy human relationships, and can be compulsive. Such sites could cause the viewer distress. I take the view that many capacitous internet users do not specifically consider this risk, or if they do, they are indifferent to this risk. I do not therefore regard it as appropriate to include this in the list of information relevant to the decision on a test of capacity under section 3 MCA 2005.

In the case of Re A Cobb J noted that a number of practical steps had been taken to help A understand the issues around internet and social media use, without success. In Re B the local authority planned a programme of education for B in the safe use of social media.

Cobb J held, by way of a final declaration in A’s case, and on an interim basis pending a programme of education in B’s case to enable her to the gain capacity, that both lacked capacity to use the internet and social media.

Comment

In his judgment in Re A, Cobb J was anxious to emphasise the importance of the internet and social media for many people with disabilities and/or social communication problems and the importance of creating and maintaining ready access for the disabled to electronic and digital technology (a right enshrined in the United Nations Convention on the Rights of Persons with Disability). However, he also acknowledged that the internet can be a dark and dangerous place, particularly for those who are vulnerable due to their young age or  learning disability, hence the necessity of conducting a careful assessment of capacity before imposing restrictions on access to the internet and social media in P’s best interests.

The case of Re A provides valuable guidance to those tasked with assessing P’s decision-making capacity in relation to the use of the internet and social media and goes some considerable way to ensure that P’s autonomy in this regard is not inappropriately restricted or removed.

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KATHRYN RIDDELL

Partner in Sintons Healthcare Team

If you have any questions or require any advice on the issues discussed in this article please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk


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