This is a guest article from Keri Tayler. Keri is a barrister specialising in Court of Protection work. She tweets as @keri_tayler
Two recent judgments in the Court of Protection sparked the usual inaccurate headlines suggesting that the court had ridden roughshod over the rights of adults with learning difficulties to access the internet, and more specifically social media. In particular this one from The Times stood out: Social workers can stop vulnerable people using social media.
But is this what the court decided?
Those readers with a working knowledge of the Mental Capacity Act 2005 (“MCA”) will know that the court can only make decisions on behalf of adults where they are assessed as lacking the capacity to make decisions for themselves. Whilst the lack of capacity to make a decision can of course make a person vulnerable, not all vulnerable people lack the capacity to make the relevant decisions.
The two cases in question are Re A (Capacity: Social Media and Internet Use: Best Interests)  EWCOP 2 and Re B (Capacity; Social Media; Care and Contact)  EWCOP 3. Both were decided by Mr Justice Cobb (Cobb J).
In Re A, Cobb J begins by specifically acknowledging the importance of the internet and social media for people who have disabilities: The internet and associated social media networks are particularly important for people who have disabilities, and/or social communication problems. They enable ready access to information and recreation, and create communities for those who are otherwise restricted in leaving their homes.
The internet and social media networks 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. The importance of creating and maintaining ready access for the disabled to electronic and digital technology is well-recognised, and needs no amplification in this judgment; it is indeed identified as a right within the United Nations Convention on the Rights of Persons with Disability (‘UNCRPD’)
He goes on to identify the risks associated with such access, which apply to us all. They were categorised in this way: content risk (receipt of mass-distributed content which may be harmful or distressing), conduct risk (where the user participates in an interactive situation, with risks emanating from the over-sharing of information or becoming a victim of bullying) and contact risk (where the user becomes a victim of interactive situations).
Cobb J first had to decide whether the use of the internet and social media is a sub-set of decisions involving care and contact with other persons, or whether they are free-standing decisions. He decided that they are in fact distinct decisions. This was because he considered that there is a risk that if it was considered in the contact of general care and contact decisions “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”.
Having decided that they are specific decisions in their own right, and he could therefore not rely on the existing law relating to contact and care, he had to formulate what the relevant information is to the decisions in questions in order to be able to decide whether A and B had the relevant capacity.
With what he acknowledged was significant assistance from counsel he formulated the relevant information as follows (para 28):
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;
He went on to provide some additional points of guidance before being very careful to make the observation that whether understanding that accessing the internet raises the potential for psychological harm was not part of the list of of relevant information precisely because many capacitous internet users do not specifically consider the risk, or if they do, they are indifferent to it.
So how did he apply this formulation of the law to A and B?
A is a 21 year old man with impairments in his adaptive social functioning and executive functioning. He lives in independent supported living and receives extensive personal care support. He also identifies as a gay male, and it was the sharing of intimate photographs with other males on the internet which first alerted those who care for him to concerns with his use of social media. He was also found to search compulsively for pornography and had begin to develop an interest in sites whose content would be illegal, yet could not read or understand the warnings about content and safety.
Cobb J found that A lacked capacity to make decisions about his access to the internet (paras 30 and 31) and, in terms of best interests, approved the local authority’s care plan which allowed A access to the internet and his mobile telephone – but with appropriate lev els of supervision and safeguards.
Miss B (whose age isn’t immediately apparent on the face of the judgment but from the overall content must be assumed to be a young adult) has a learning difficulty, suffers from epilepsy and has considerable social care needs. She is described as being “wedded to her mobile phone and uses it to communicate via social media”. Concerns arose in relation to Miss B when it was found that she was sending intimate photographs of herself to male strangers, and sharing personal information. She was also using the internet to search for a boyfriend. Her online relationship with a Mr D was a particular concern.
In relation to Miss B, whilst Cobb J found that she lacked capacity as at the date of the hearing to make decision about her use of the internet, he considered that steps could and should still be take to enable her to acquire capacity, and in that context only made interim declarations whilst those steps are carried out. If she did not acquire capacity he rightly foresaw that significant issues would arise in assessing her best interests and balancing her exercise of her freedoms to use the internet with the need to ensure that she was not exposed to unacceptable levels of risk.
So far from designing a tool to enable social workers to stop vulnerable adults using the internet, what Cobb J has in fact created is a careful road map to assessing capacity to use the internet and social media and then adopted a measured approach where such capacity was found to be lacking. Those of us who practice in this area expected nothing less, it’s the media narrative that remains out of kilter.
This article first appeared on the Transparency Project blog