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

Rosalind English analyses the second Court of Protection ruling in a week to cover the use of the internet.

The patient in Re: A (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP 2 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 workers, 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 article. 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.

Rosalind English is a former academic at 1 Crown Office Row who co-edits the set's UK Human Rights Blog, where this article first appeared.

Click here to read her article on the earlier ruling, Mental Capacity for handling the internet.