In these two simultaneous judgements, Cobb J considered for the first time the correct test for undertaking a capacity assessment in relation to internet and social media use. In doing so, he recognised the increasing value and risks associated with internet and social media networks that are particularly important for people who have disabilities, and/or social communication problems and the enshrinement of associated rights under the United Nations Convention on the Rights of Persons with Disability.
Capacity to internet and social media use - test
Cobb J concluded that capacity as to internet and social media use was a different question entirely as against a person’s ability to make a decision about either ‘contact’ or ‘care’.
The relevant information
Cobb J set out the need to be careful not to overload any capacity test with “relevant information” but to limit it to the “salient” factors that would be considered by the majority of persons with capacity when browsing the internet. As such, he set out guidance in relation to the ‘relevant information’, which P needs to be able to understand, retain, and use and weigh, at paragraph 37 of the judgement.
The judge also considered whether to include in the list of relevant information that internet use may have a psychologically harmful impact on the user, however he decided against it as he concluded that “many capacitous internet users do not specifically consider this risk, or if they do, they are indifferent to this risk”.
Both A and B are young adults (21 and 30 respectively) with a learning disability associated with an impairments that are static.
When unsupervised, A was known to search compulsively for pornography and had an interest in sites showing extreme, even illegal, sexual activity. A’s low level of literacy and poor written communication skill severely impaired his ability to navigate the internet safely and he was regularly inadvertently putting himself at risk. A also made contact with a large number of men locally, nationally and internationally, some of who were known to be sexual predators and sex offenders, sending intimate photos and inviting them to meet up. In addition, A confided that he had been raped twice by an identified male he had met online. Police were concerned that A would not just be a repeat victim of sexual, emotional and/or physical violence but that he could also become a perpetrator of offences related to illegal images and/or entering relationships with minors, as he could not understand the impact of age.
B was sending explicit sexual messages, intimate photographs, and money to men who were not known to her, who she referred to as her "boyfriends". B would not talk to a stranger, but could not believe that someone she met on Facebook would be a 'stranger'. She believed a person was good solely by virtue of the fact they were talking/texting/messaging her. In 2018, B ‘met’ C online. The proceedings consider B’s emphatic want to move in with C and continue contact with him. C is in his seventies and a convicted 'medium / high risk' sex offender subject to a Sexual Harm Prevention Order. Although B has been advised several times of the risks posed by C, she refuses to believe his offending history. C has introduced B to three of his ‘friends’ on social media, with whom she has engaged in sex chats. B has met C several times, and at least once stayed overnight. C describes B as functioning as a 10-year old and that she is his 'slave'. Cobb J was asked to provide judgement in respect of B’s capacity as to where she resides; decisions on her package of care; decisions on contact; decisions to use social media; and ability to consent to sexual relations.
Both A and B had been provided with education packages and consistent support to understand the risks associated with their internet use. Notwithstanding these efforts, both were consistently continuing with risky internet use. The clinical evidence considered at the date of the hearings that they were not just making unwise choices, but that they did not understand the risks to themselves or others of using the internet in this way. The capacity evidence had been consistent for A, but for B, she had been found to lack capacity in respect of sexual relations and engaging in conversations with unknown males online in October 2017 but then to have capacity for both in January 2018. Then in May 2018, she was found to have capacity as to sexual relations but not in relation to contact with unknown males. This put doubt in Cobb J’s mind as to B’s ability to retain and weigh up information, following recent education, when presented in a way that was accessible to B.
Cobb J accepted the evidence that A lacked capacity as to internet and social media use, there was no dispute as to capacity in any other domain. He acknowledged that over the years a number of practicable steps had been taken (and were still being taken) to help A to understand the issues, without success.
Cobb J found that the local authority had not discharged the burden of proving B did not have capacity in relation to residence. In concluding this, he agreed that B may not have fully thought-through the implications of a move to live with C, but the evidence showed that she did understand in broad terms the care she would receive if she lived with C in contrast to living at home or in residential care. He was mindful not to impose a too high a test of capacity due to the risk of discrimination. Cobb J found that the understanding of the risks C may pose to her was a separate issue, which he considered under 'care' and contact. Cobb J found that B lacked capacity in relation to care and contact.
In relation to capacity to consent to sexual relations and “her decisions to use social media for the purposes of developing or maintaining connections with others” he found she lacked capacity. However, he only made interim declarations, directing a program of work to offer her practicable help before a final determination was made.
Cobb J reminded the Court that if B remained unable to make the decision about social media use that significant issues around the “best interest” evaluation would have to be considered – in that any interference with those rights would have to be justified and proportionate and without being unduly “restrictive of [B’s] rights and freedom of action” (section 1(6) MCA 2005). Cobb J, however, concluded on best interest that A’s local authority draft 'internet access and safety' care plan corresponded entirely with his best interests and therefore approved it.
There is an inherent dilemma in how to practically empower and protect people with learning disabilities in relation to their sexuality. As identified in this case, the complexity of achieving this aim is now likely to include consideration of the pros and cons of the increasing accessibility of the internet and sexual material and/or engaging in sexual relations on it. Difficult nuances will be experienced by carers and practitioners assessing capacity, and ensuring that the bar is not too high. Thereafter, if an individual is deemed to lack capacity, decision making as to best interest must be pragmatic, balancing all of an individuals’ rights without automatically weighing most heavily on preventing risk and promoting safety. Decision makers must remember that this area has risks (e.g. meeting strangers through internet dating), that are often trumped by the pursuit of gratification, for those that have capacity.
All risks are therefore unlikely to be eliminated, particularly in circumstances where the internet can offer many positive ways for the individual to explore and express their sexuality as well as developing intimate relationships that they would not otherwise have access to. Wherever possible freedom, privacy and dignity around this should be promoted. As such, in most cases, education in relation to sex, exploitation and internet use must be the starting point in order to reduce vulnerability in the most empowering way- whether there are concerns about capacity or not.
Bevan Brittan can assist with pro-active efforts within your organisation to promote good practice in making capacity and best interest decisions in this tricky field. This may be achieved through drafting robust practical policies and guidance and/or developing and delivering training. We can also assist with pragmatic and efficient management of any dispute and/or court proceedings in relation to capacity, best interest and unlawful deprivation of liberty.
N.B Cobb J used the UK Council for Child Internet Safety’s Guidance ‘Child Safety Online: A Practical Guide for Providers of Social Media and Interactive Services’ to describe and consider types of online risk.