Mental capacity for social media and the internet: another Court of Protection case

28 February 2019 by

apple applications apps cell phone

Photo by Tracy Le Blanc on Pexels.com

Re: A (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP 2

The patient in these proceedings was a woman in her thirties (“B”). She suffers a learning disability and epilepsy and has considerable social care needs. She currently lives at home where she spends much of her time watching television.  She struggles to manage her personal care and hygiene, and, in the judge’s words, she is “grossly overweight.”

She is prone to confrontational behaviour when challenged, and can be physically aggressive. She is assessed as requiring support to maintain her safety when communicating with others; when she receives information which she does not want to hear, she often becomes dismissive, verbally aggressive and refuses to engage.

This hearing concerned her capacity to litigate in these proceedings, to manage her property, to decide where she resides and her package of care, and to decide with whom she has contact. The main focus of the judgment was on the question that arose in the “A” case , as to the capacity of the patient to use the internet and communicate by social media. Closely related to this was the issue of her capacity to consent to sexual relations.

B is “wedded” to her mobile phone, and uses it to communicate via social media, principally using WhatsApp, Facebook and Snapchat. This media activity has caused “repeated concern” to her social care workers.  As in the “A” case posted here, B has been known to send intimate photographs of herself, and to communicate her address and other personal information about herself, to members of the opposite sex. According to her social works, she is “very keen” to be in a relationship with a male. She is known to search the internet for a boyfriend by typing in male forenames, and when men respond, she asks them directly whether they will be her boyfriend. Once she has made a link with a potential mate, and they respond to her, she views them as a ‘friend’ and will quickly tell them that she loves them and wants to meet with them. She routinely ‘sex chats’ with males.

Cobb J referred to the arguments in “A”  as to the question of capacity relating to communication with others, as opposed to the question of capacity for the use of the internet and social media platforms.  He reiterated that the issue of whether someone has capacity to engage in social media for the purposes of online ‘contact’ is distinct (and should be treated as such) from general consideration of other forms of direct or indirect contact:

I am satisfied that wider internet use is different from general issues surrounding care.

Cobb J’s steps for determining capacity for using the internet and social media are set out in “A” and our previous post.  Tellingly, in one of his interviews with “Miss B”, he established that, whilst she would not talk to a stranger, she did not believe that someone whom she met on Facebook was, or would be, a “stranger” [para 38]. When she was asked by social workers in 2018 how she would be able to work out who was a good or not a good person on social media, Miss B stated that, because she was texting/messaging with them that meant that they were “good”. She told her psychiatrist that the people she met on line were “generally good” and could not contemplate that people may lie online.  The consultant psychiatrist was of the view that Miss B had struggled to identify strategies to keep herself safe, and was concerned that Miss B viewed ‘friends’ who she met on Facebook as important to her, not considering it possible that they were capable of doing her harm.  She had difficulty in understanding what other people’s motives might be.

On this evidence, Cobb J was satisfied that Miss B did not have capacity to decide to use social media for the purposes of developing or maintaining connections with others.  Other declarations were made with regard to her capacity for litigation, managing her property and other life circumstances. The main conclusion for the purposes of this post is that the judge did not consider B to be capacitous in relation to the use of social media for the purposes of developing or maintaining connections with others. He also found that B lacked capacity in relation to her ability to consent to sexual relations.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: