Mental capacity for handling the internet

A Court of Protection judge has considered whether to make declarations about a learning disabled man’s capacity to use the internet. Rosalind English analyses the ruling.

In the case of A (Capacity: Social Media and Internet Use: Best Interests)  [2019] EWCOP 2 Cobb J was asked to make declarations under the Mental Capacity Act 2005 regarding a learning disabled man’s capacity to use the internet and social media. (NB on 21 February judgment was also handed down in a similar case on which we will post shortly: B (Capacity: Social Media: Care and Contact) [2019] EWCOP 3.

The rapid development of the internet and proliferation of social media networks over recent years have fundamentally reshaped the way we engage with each other. We spend more time on our digital electronic devices than we do interacting with other humans and naturally this has brought huge benefits in terms of entertainment, communication and gathering information. The social media ‘apps’ available for instant messaging and networking are mostly easy and free to use, amongst them chiefly Facebook, WhatsApp, Snapchat, Facetime, Skype, Instagram, and Twitter. For people with disabilities the internet and associated social media networks are particularly important:

They enable ready access to information and recreation, and create communities for those who are otherwise restricted in leaving their homes. The[y] … have generally served over the years to promote social inclusion, rather than exclusion; they offer disabled users opportunities and enhanced autonomy, they provide a means to express social identity, and they enable the learning of new skills, and the development of careers.

Of course these advances in digital technology have their dark side. Not just the dark web, but the openly available internet can be a dangerous place, where “dehumanising” material is all too readily accessible. More and more frequently we hear stories of cyber-bullying, harassment, child sexual abuse, sexual grooming, trafficking, trolling and the theft of personal identity. As with most technology, the online world seems to be spinning beyond the reach of the law.

Background facts

This case concerned a 21-year-old man, A, who identifies as a gay male. He has a learning disability, with an impairment in adaptive social functioning, and executive functioning. He resides in a supported living placement. Concerns about A’s internet use arose first when he was living alone. His parents discovered that he was sharing intimate photographs and videos of his genitals on Facebook. His social worker expressed the view that his "compulsion to communicate with others online seems to override any concern he may have for his own safety".

Even in supported living A takes the opportunity when unsupervised to search compulsively for pornography. What prompted this application by the local authority was the realisation that A had developed a “considerable interest” in sites showing paedophiliac and extreme, even illegal, sexual activity. There were allegations that he had been searched out and raped.

In May 2017 his own device was temporarily withdrawn. But he got hold of a staff member’s mobile phone and in a short time accessed over 150 extreme pornography sites, and sent a number of unsolicited messages to a male who had been identified as the alleged rapist.

Cobb J stressed the importance of distinguishing the question of capacity for engaging in social media for the purposes of online contact from other forms of contact, or general issues surrounding care. There was a risk that if social medial and/or internet use were 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 was extremely important to those with disabilities.

The test for capacity in the context of social media

For a person to have capacity in this area, the court needs to be sastisfied of the following factors:

1. They do not have to understand the precise details or mechanisms of the privacy settings, but they do have to be capable of understanding that they exist. They should be able to decide, with support, whether to apply them.
2. They need to understand the consequence of sending an email, making an offer on a file sharing platform, uploading to a site that other people have access to, and possessing with a view to distribute.
3. They have to appreciate that by placing material or images (including videos) on social media sites which are rude or offensive, other people might be upset or offended.
4. They must understand that by looking at or sharing “extremely rude or offensive” images, messages or videos online they may get into trouble with the police, because they may have committed a crime. (This last statement was designed to reflect the importance, that a capacitous person would understand, of not searching for, disseminating or investigating such material as it might have criminal content.)

The Court’s conclusions

The patient A had only partial understanding that the information and images which he shared on the internet or through social media could be shared more widely, including with people he did not know. He had a limited understanding of privacy settings, and only a partial understanding that people might be upset or offended by information shared online. He was not able to use or weigh that information. He had a poor understanding of the risks that people might pose online, and could not understand that people might disguise their identity to take advantage of him. Practical steps had been taken to help him understand the issues, without success. He lacked capacity to use the internet or social media.

Accordingly, Cobb J approved the local authority’s plan for him limit his access to the internet, and even then only under supervision.

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.