Re A (Capacity: Social Media and Internet Use: Best Interests); Re B(Capacity: Social Media: Care and Contact)
Judge: Cobb J
Citation: 2019] EWCOP 2
Citation: 2019] EWCOP 3
In two linked judgments, Cobb J has outlined the relevant, and irrelevant, information for purposes of deciding whether a person has capacity to make decisions about internet and social media use.
The importance of the internet and social media
Cobb J started his judgment in Re A by emphasising the central importance of internet and the social media to those with disabilities, including by reference to the CRPD. He also identified the potential for risks online, including, in particular, those with learning disabilities (and, in passing, noted that “[t]hose who press for a change in the legislation [to make it a crime to incite hatred because of disability] have a compelling case.”
The nature of the decision
Cobb J was asked, first, to consider whether, in undertaking a capacity assessment, internet and social media use should form a sub-set of a person’s ability to make a decision about either ‘contact’ or ‘care’. He came to the clear conclusion that it was a different question, not least because “[t]here 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.” Further
- 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; as I described above (see ), 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. The use of the internet and the use of social media are inextricably linked; the internet is the communication platform on which social media operates. For present purposes, it does not make sense in my judgment to treat them as different things. It would, in my judgment, be impractical and unnecessary to assess capacity separately in relation to using the internet for social communications as to using it for entertainment, education, relaxation, and/or for gathering information.
The relevant information
Having identified the decision, Cobb J reminded himself of the need to be careful not to overload the test for the information relevant to it, but to limit it to the “salient” factors (per LBL v RYJ  EWHC 2664 (Fam) at , and CC v KK & STCC  EWCOP 2136 at ). “In applying that discipline,” he continued, “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.”
Against that backdrop, he held that: ‘relevant information’ which P needs to be able to understand, retain, and use and weigh, is as follows:
- 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; [see paragraph below];
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; [see paragraph below];
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; [see paragraph below].
- With regard to the test above, I would like to add the following points to assist in its interpretation and application:
i) In relation to (ii) in  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) in  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) in  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) in  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.
The irrelevant information
Importantly, Cobb J also considered whether to include in the list of relevant information that internet use may have a psychologically harmful impact on the user:
- 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 .
The application of the tests
Cobb J held, as a final declaration in Mr A’s case, and on an interim basis pending the taking practicable help to enable the gaining of capacity in Ms B’s case, that both lacked the material decision-making capacity.
In Ms B’s case, Cobb J also usefully reiterated the tests (and relevant information) in relation to residence, care, contact and sexual relations. He also (earlier in his judgment) offered these interesting general observations:
- General observations : In reviewing the capacity questions engaged here, I have reminded myself of the importance of establishing the causative nexus between the impairment of mind and the inability to make decisions. In this regard, counsel has rightly focused, when testing the evidence and making submissions, on the extent to which Miss B is influenced in her decision making by others – notably her father and/or Mr. C. Undoubtedly both men do exercise an influence over her; I was told (though make no finding) that her father can be abusive to her, verbally, and imposes boundaries on her which she finds unwelcome, whereas Mr C is persistent, and it may be thought controlling through his continual communications with her via social media (generally WhatsApp). I am satisfied that influence is a factor, but I share the view of Dr. Rippon that it is not actually operative on her decision making, and is in any event not more significant than the clearer evidence about impairment of the mind (Parker J in NCC v PB & TB  EWCOP 14 at ).
- While there is some logicality to the strict decision-specific approach […], there is also some artificiality around the results. This case has revealed for me, once again, some of the anomalies of the required and disciplined approach in cases concerning capacity: thus, it will be shown that Miss B will be assessed as having capacity to decide on residence, but not her care (even if her proposed favoured residence is with someone who palpably will not care appropriately for her); she may have capacity to consent to sexual relations, but not have capacity to decide with whom to have those relations, or indeed any form of contact. That is the law which I must apply.
These cases make absolutely clear how capacity assessment can be determined not just by application of the ‘functional’ test in the MCA, but by the two precursor steps of identifying the decision and the (ir)relevant information to that decision. Those two choices can make a radical difference in the process of determining whether, ultimately, the individual’s choices are going to be afforded legal respect. In this case, it is of no little interest or importance that Cobb J reminded himself in Re A at the outset of the gravity of this task, and, in so doing, directed himself by reference by the CRPD, giving in the process a useful summary of the ‘state of the art’ in relation to the correct approach to take:
While the UNCRPD remains currently an undomesticated international instrument, and therefore of no direct effect (see Lord Bingham in A v Secretary of State for the Home Department  UKHL 71;  2 AC 221 at ), it nonetheless provides a useful framework to address the rights of persons with disabilities. By ratifying the UNCRPD (as the UK has done) this jurisdiction has undertaken that, wherever possible, its laws will conform to the norms and values which the UNCRPD enshrines: AH v West London MHT  UKUT 74 (AAC);  (See R(Davey) v Oxfordshire CC & others  EWCA Civ 1308 at , and Mathieson v SS for Work and Pensions  UKSC 47,  1 WLR 3250 at ). I am satisfied that I should interpret and apply the domestic mental capacity legislation in a way which is consistent with the obligations undertaken by the UK under the UNCRPD.
Cobb J was acutely aware of the balance that he was seeking to strike by his choice of the relevant information (and irrelevant information) going into the mix in relation to the assessment of capacity to make decisions about social media and the internet. Even if one may take a different view of the information to put into the mix, the transparent process by which he reached and accounted for his decision is both of practical importance to front-line practitioners seeking to grapple with these cases, and also to allow wider society to understand the basis upon which such decisions are reached.
 Tor having acted for the local authority in Re A, and Neil for A’s parents, neither have contributed to this report.