Court of Protection judge reaches different conclusion to psychiatrist on capacity of young man to use internet

A Court of Protection judge has ruled that it is not in a young man's interests for daily checks to be undertaken of his electronic devices, due to “insufficient evidence” to conclude he lacks capacity to make decisions in respect of social media and internet use.

This decision in AA, Re (Capacity: Social Media and Internet Use) [2021] EWCOP 70, published this week on Bailii, was taken despite the local authority urging the judge to accept the report and opinions of a psychiatrist who has been involved in the case for a “considerable period of time”, and to make a declaration that the young man (AA) lacks capacity in relation to his use of the internet and social media.

In oral evidence, the psychiatrist emphasised the importance of the context and in particular the diagnosis made in respect of AA that he is on the autistic spectrum, that he has an attachment disorder and he has borderline cognitive deficits.

He told Mr Justice Keehan that, because of that attachment disorder, AA had a “very powerful urge and need to form relationships and, in the moment, might not consider the risks to him in entering into a particular relationship.”

The judge accepted that “It is plain that, in the past, certainly in 2020 and the earlier part of this year, AA has taken actions and made decisions which have clearly put him at real risk of harm.”

This was in reference to an online relationship the young man shared with an individual (MJ) in which he engaged in autoerotic asphyxiation, which “plainly put his life at risk”.

The young man told the psychiatrist and others that there came a point when MJ was asking him to send more explicit material to him, at which point AA made the decision not only to terminate the relationship but to block MJ from contacting him, the judge noted.

The psychiatrist’s opinion was that, looking at the whole history, AA was “unable to transpose an acknowledgment of risk in one situation to a different situation.”

They concluded that, “notwithstanding some progress made by AA”, he was “unable to weigh the information to make a capacitous decision.”

The judge also heard from AA's social worker, who filed a number of statements. In answer to counsel for AA, she acknowledged that he had made “very considerable progress” over the course of the last year. The phrase she used was that he had "blossomed", which the judge accepted.

Counsel for AA urged the judge to find that the young man was capacitous or, if found that he was incapacitous, that it was “not in his best interests for the daily checks of his electronic devices to be undertaken by the staff at the place where he lives or, as an alternative to that, if those checks are in his best interests, that they are time-limited and reviewed”.

The judge noted that AA had increased his contact with people in the wider community, had greater contact with his family, was learning to drive and was seeking to get a job which are “all very considerable positives”.

He added: “He has taken advantage of the unsupported time that he now has in the community and, since the time that he blocked MJ contacting him, there is no evidence that he has put himself at risk of harm in his use of the internet, nor is there any evidence that he has put himself at risk of harm when taking advantage of his unsupervised and unsupported time in the community.”

The judge said: "Whilst I entirely respect and understand the opinion of [the psychiatrist], on the basis of the evidence, I reach a different conclusion from him."

He said that in the absence of any evidence, "for many months now", of AA putting himself at risk of harm in his use of the internet and social media, he was satisfied that there was insufficient evidence to conclude that the young man lacked capacity to make decisions in respect of his use of the internet and of social media.

He continued: “Even if I am wrong in coming to that conclusion and I ought to find that he does lack capacity, I am entirely satisfied that it is not in his best interests for the daily checks to be undertaken of his electronic devices because:

(a) they deliver no evidence of any value and afford no protection to AA; and

(b) it is contrary to AA's wishes that those checks are undertaken, which causes him some distress and/or at least uneasiness.”

Lottie Winson