![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Protection Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> B (Capacity: Social Media: Care and Contact) [2019] EWCOP 3 (21 February 2019) URL: https://www.bailii.org/ew/cases/EWCOP/2019/3.html Cite as: [2019] EWCOP 3, [2019] Med LR 143, (2019) 168 BMLR 72, [2019] COPLR 163 |
[New search]
[Context]
[View without highlighting]
[Printable PDF version]
[Help]
Neutral Citation Number: [2019]
EWCOP
3
Case No: 13281081
IN THE COURT OF PROTECTION
Coverdale House
East Parade
Leeds
Date: 21/02/2019
Before
:
THE HONOURABLE MR JUSTICE COBB
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Re B
(Capacity: Social Media: Care and Contact)
- - - - - - - - - - - - - - - - - - - - -
Simon Garlick (instructed by
County Solicitor ) for the Local Authority
Sam Karim QC and Francesca P Gardner (instructed by
MJC Law for the Official Solicitor ) for Miss
B
Hearing dates: 28 and 29 January 2019
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
I direct that pursuant to CPR PD 39A
para 6.1 no official shorthand note shall
be
taken of this Judgment and that copies of this version as handed down may
be
treated as authentic.
.............................
THE HONOURABLE MR JUSTICE COBB
This judgment is covered by
the terms of an order made pursuant to Practice Direction 4C-Transparency. It may
be
published on condition that the anonymity of the incapacitated person and members of her family must
be
strictly preserved. Failure to comply with that condition may warrant punishment as a contempt of court.
The Honourable Mr Justice Cobb:
Introduction
1. The application before
me concerns Miss
B,
a woman in her
30s
with learning disabilities.
By
this judgment, I set out my conclusions in relation to a range of capacity questions on issues relevant to Miss
B’s
life, including her capacity:
i) To litigate in these proceedings (see [22]-[24]);
ii) To manage her property and affairs (see [25]);
iii) To decide where she resides (see [26]-[28]);
iv) To decide on her package of care (see [29]-[31]);
v) To decide with who she has contact (see [32]-[33]);
vi) To use the internet and communicate by
social media; (specifically, it is agreed that the question is ‘whether Miss
B
has capacity to make a decision to use social media for the purposes of developing or maintaining connections with others’) (see [
34]-[41])
(the question was framed in a similar way in Re A (Capacity: Social Media and Internet Use:
Best
Interests) [
2019]
EWCOP
2 (‘ Re A ’) );
vii) To consent to sexual relations (see [42]-[46]).
2. Given that the point at 1(vi) above is relatively novel, much attention has been
given in these proceedings to what constitutes the “information relevant to the decision” ( section
3(1)(a)
Mental Capacity Act 2005 : ‘ MCA 2005 ’) to use social media for the purposes of developing or maintaining connections with others’. The Official Solicitor, who acted for A in Re A , has submitted through Mr Karim QC and Miss Gardner that the relevant information can
be
pared
back
to three essential components; the Official Solicitor took a different, and more expansive, approach in Re A . The local authority (adopting a line more akin to the arguments advanced across the
board
in Re A ) has proposed that it should involve a fuller range of information. As it will
be
seen ([
37]),
I have taken a view which is closer to the approach of the local authority in this case, and of all of the parties in Re A .
3.
My findings on capacity or incapacity set out
below,
whether as final or interim declarations, will provide a platform from which I will go on at a later hearing to consider
best
interests issues.
Statutory framework
4. I have approached the central issues arising here with keen attention to the statutory assumption that Miss B
has “capacity unless it is established that [she] lacks capacity” ( section 1(2) MCA 2005 ). My focus has
been
principally on section 2 and section
3
of the MCA 2005 – and specifically, on whether, in relation to the matters under debate, she is unable, “at the material time” (i.e. now), to make a decision for herself “
because
of an impairment of, or a disturbance in the functioning of, the mind or
brain”
( section 2 MCA 2005 ). It is important in this case (and, as will
be
seen, influential in the outcomes proposed) to have regard to the availability and appropriateness of “ practicable steps” to help Miss
B
to make the relevant decisions ( section 1(
3)
MCA 2005 ); this is one of the three key parameters of the MCA 2005 . As the Mental Capacity Code of Practice stresses: “it is important not to assess someone's understanding
before
they have
been
given relevant information about a decision” (para 4.16) and that “it is important to assess people when they are in the
best
state to make the decision, if possible” (para 4.46).
5. The evidence has largely been
directed to the familiar ‘functionality’ test contained in section
3
; this requires me to consider whether Miss
B
can (a) understand the information relevant to each decision, (
b)
retain that information, (c) use or weigh that information as part of the process of making the decision or (d) communicate her decision (whether
by
talking, using sign language or any other means). If it is shown on the
balance
of probabilities that she is unable in any of these respects, then she is regarded as “unable to make a decision for [her]self”. As is commonly the case, I have
been
most concerned with the issues of ‘understanding’ ((a) above) and ‘using and weighing’ ((c) above).
6. Having heard the evidence and received the submissions of counsel, I have had cause to consider whether I should make final capacity declarations under section 15 MCA 2005 , alternatively interim declarations under section 48(a) ibid.; interim declarations would be
appropriate where the evidence is not complete, or where practicable steps could yet
be
taken to assist Miss
B
to make the decision
but
where there is nonetheless currently “ reason to
believe
that P lacks capacity in relation to the matter”. Particularly given the essentially
binary
nature of the capacity question, I am keen to ensure that all reasonable opportunities have
been
given to Miss
B,
where relevant, to demonstrate her abilities
before
reaching definitive conclusions.
Evidence and submissions
7. For the purposes of my determination, I heard oral evidence from Dr. Lisa Rippon, MBBS, FRCPscyh, Consultant Psychiatrist, and from Ms K, Miss B’s
social worker. I have
been
greatly assisted
by
their evidence,
but
I am clear that the decision on functional ability is ultimately mine not theirs ( CC v KK [2012]
EWCOP
2136).
8. I have received helpful oral and written submissions from counsel, Mr. Garlick for the local authority, and Mr Karim QC and Miss Gardner for Miss B.
I have had the advantage of submissions on the common social media issues from Miss
Butler-Cole
and Mr McCormack, Mr. Patel QC and Mr. O’
Brien,
and Mr. Allen in the case of Re A . I also had the
benefit
of reading a useful paper on social media prepared
by
Ms Sophie Hurst, a
barrister.
9. Miss B
attended at court, and indicated that she wished to speak with me; it was agreed with counsel that this would
be
appropriate, so that she could express her wishes and feelings to me directly, and so that she could feel part of the proceedings (see rule 1(2)(d) of the Court of Protection Rules 2017 ). We spoke together in one of the conference rooms for a little over a quarter of an hour, in the company of Miss
B’s
solicitor (who took a note) and learning support worker. It was a pleasure to meet with her. She was chatty and in good spirits; I could not
be
under any misapprehension about the strength of her expressed wish to live with Mr. C.
10. In deciding on capacity to communicate by
social media, counsel in this case had seen the proposed agreed formula of the outline ‘relevant information’ which counsel had prepared in the case of Re A (Capacity: Social Media and Internet use) (see [27] of that judgment), in respect of which I had heard the arguments in the previous week.
11. Miss B
suffers a learning disability and epilepsy and has considerable social care needs. She currently lives with her parents and sibling; although she has occasional overnight respite care which she appears to enjoy, and some community support, she is somewhat socially isolated. The family home is said to
be
unkempt and dirty; Miss
B
spends much of her time watching television. She enjoys colouring in pictures (an activity in which she was actively absorbed while I chatted with her at court).
12. Miss B
struggles to manage her personal care and hygiene; 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.
13. She is wedded to her mobile phone, and uses it to communicate via social media, principally using WhatsApp, Facebook and Snapchat. Miss B’s
social media activity has, over the last three years, caused repeated concern to her adult social care workers. She has
been
known to send intimate photographs of herself, and to communicate her address and other personal information about herself, to male strangers. 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.
14. Unsurprisingly, a number of specific safeguarding concerns have been
raised in this respect. For example, in 2016, she established contact with a male (Mr D), who early on in their communications told her that he would slit his wrists if she did not send him money. It is not known whether she did send money. Miss
B
told her care workers that she planned to live with Mr D “and have children” with him, though she had not at that point actually met him. Mr D had a history of criminal offending, including domestic assaults, and was said to suffer from a personality disorder and mental ill-health; through multi-agency intervention, the police managed to track down Mr D and dissuade him from meeting with Miss
B.
However, during 2017, Miss
B
‘met’ a number of other men through social media. Adult social services continued to monitor her
behaviour
and sought to advise her of the risks and support her.
15. In light of the foregoing concerns, Miss B’s
social worker – who has known her since 2011 – has conducted a number of capacity assessments over the last 2-
3
years covering different aspects of Miss
B’s
decision-making. Ostensibly inconsistent conclusions have
been
reached through these assessments over time about Miss
B’s
capacity: while she has
been
shown to lack capacity in relation to consenting to sexual relations in October 2016, she was found to
be
capacitous in this respect in January 2017, and this position appears to have
been
confirmed in May 2018 (including an understanding of sexually transmitted disease (see [44]
below)).
While she was assessed as not having the capacity to understand the risks associated with engaging in conversations with males unknown to her in October 2016, she was found to
be
capacitous in this regard in January 2017;
by
May 2018 she was assessed as lacking capacity again to understand the risks of
befriending
strangers on the internet. Notably, Miss
B
has
been
assessed in relatively recent times as having capacity in relation to her care and support needs (assessment 4.11.16).
16. There is no single or clear explanation for the discrepancy in outcome of these assessments, as Miss B’s
learning disability and cognitive functioning is assessed as static not fluctuating. It seems likely that some ‘teaching’ offered
by
the community team for learning disability in 2017, educating her in relation to sexual relations and social media, was effective in those areas. Miss
B
appears to have retained information following that learning, at least for a short period; it is possible that she then forgot this information ( section
3(3)
MCA 2005 of course provides that: “ The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from
being
regarded as able to make the decision”) . There is also a small chance that there may have
been
either a lack of clarity on the part of the assessors about the application of the statutory criteria or the ‘relevant information’ which Miss
B
should know, and/or an inconsistency has crept in to the outcomes through assessments undertaken
by
different assessors. The variability of outcome might serve to underline the importance of presenting information to P in a way that is consistent and appropriate to meet the individual’s needs and circumstances, attaching importance to explaining information using the most effective form of communication for that person (such as simple language).
17. In 2018, fresh concerns were raised about Miss B
sending explicit sexual messages, intimate photographs, and money to men who were not known to her,
but
who she referred to as her “
boyfriends”.
It was through this
behaviour
that she met Mr C. He is a man in his seventies who is a convicted sex offender, classed as ‘medium / high risk’ and subject to a Sexual Harm Prevention Order (‘SHPO’). Although Miss
B
has
been
advised of the risks posed
by
Mr C, she
bluntly
refuses to
believe
the truth about his offending history. She remains in regular contact with him; she has met him several times, causing him on one occasion to
be
in
breach
of his SHPO. On at least one occasion she has stayed overnight with him at his home. Messages sent to Miss
B
by
Mr C reveal that he describes her as his ‘mistress’ or his ‘slave’. Miss
B
has confided in her social worker that she wishes to have his
baby.
Through Mr C it is
believed
that Miss
B
has met three of Mr C’s ‘friends’ on social media, with whom it is said she has engaged in sex chats. Even recently, in discussion with Dr. Rippon, Miss
B
refuted as ‘lies’ what she has
been
told of Mr C’s offending history. For his part, Mr C has worryingly confirmed to his probation officer that:
i) He is aware of Miss B’s
learning disability, and describes her as functioning as a 10-year old;
ii) He wishes to marry Miss B;
iii) He challenges the local authority’s actions in informing Miss B
of his offences;
iv) He remains in regular contact with Miss B;
v) He actively seeks females on Facebook.
18. In October 2018, at the instigation of the local authority, and satisfied on the basis
of the information then available that Miss
B
lacked capacity to make a decision about contact with Mr C, I imposed an interim injunction on Mr C prohibiting him from having any contact with Miss
B;
this was confirmed more recently at an ‘on notice’ hearing. There is evidence (as yet untested) that Mr C has
been
in
breach
of my last order, and the local authority has issued contempt proceedings which are imminently to
be
heard
by
the court.
Capacity: discussion.
19. 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 [2014]
EWCOP
14 at [86]).
20. While there is some logicality to the strict decision-specific approach which I have summarised at [4] and [5] above, 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.
21. I have further borne
in mind (and this is particularly relevant to the ‘residence’ question
below)
what
Baker
J (as he then was) said in PH and A Local Authority v Z Ltd & R [2011]
EWCOP
1704 at [16(xi)]: “courts must guard against imposing too high a test of capacity to decide issues such as residence
because
to do so would run the risk of discriminating against persons suffering from a mental disability.”
22. Capacity to litigate : Dr. Rippon is of the view that Miss B
lacks capacity to litigate as a result of her learning disability. In reaching this conclusion, Dr. Rippon has rightly applied the test set out in Masterman-Lister v
Brutton
& Co. (No.1) [2002] EWCA Civ 1889 at [75] and [79]
“ [75] … the test to be
applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to
be
necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law – whether substantive or procedural – should require the interposition of a next friend or guardian ad litem (or, as such a person is now described in the Civil Procedure Rules, a litigation friend) ...
[79] … a person should not be
held unable to understand the information relevant to a decision if he can understand an explanation of that information in
broad
terms and simple language; and that he should not
be
regarded as unable to make a rational decision merely
because
the decision which he does, in fact, make is a decision which would not
be
made
by
a person of ordinary prudence .”
23. She concluded that Miss B
could not describe the nature of the current Court of Protection proceedings …
“Despite me using simple language and explaining this information on a number of occasions, I do not believe
that [Miss
B]
understood the nature of the current proceedings or could think through the consequences of issuing instructions … [Miss
B]
lacked understanding of the information necessary to litigate in the current proceedings.”
24. The parties agree this expert opinion which chimes entirely with the evidence of the experienced social worker, and I concur that Miss B
does not have capacity in this regard and that I can make this as a final declaration under section 15 MCA 2005 .
25. Property and affairs : Dr. Rippon is the first professional to assess Miss B’s
capacity to manage her property and financial affairs; there is in fact relatively little material in the papers on which to form a view. What is apparent is that, when asked, Miss
B
has a very poor understanding of finances, a grossly inflated sense of her income from
benefits,
and demonstrated no real appreciation of how her money is spent. She showed no understanding of the risks of financial exploitation, or of the ability to prioritise her expenditure. The local authority submitted that there was reason to
believe
that Miss
B
lacks capacity in this area of decision-making for the purposes of section 48 ; Mr Garlick submitted that the fact that the family arrangements for dealing with finance had allowed Miss
B
no experience of
being
responsible for her finances meant that there was insufficient evidence that she would not in the future
be
able to manage her property and affairs, and therefore that a section 15 declaration was not appropriate. Dr. Rippon considered, having discussed these issues with her, that Miss
B
lacked capacity in this regard, and given the abstract nature of the concepts involved would not
benefit
from education in this area. The Official Solicitor agrees; so do I. A section 15 declaration will
be
made.
26. Residence : The widely accepted test of ‘information relevant to a decision’ on residence is that which is set out in Theis J’s decision of LBX v K, L, M [2013] EWHC 3230
(Fam) at [43] namely:
i) what the two options are, including information about what they are, what sort of property they are and what sort of facilities they have;
ii) in broad
terms, what sort of area the properties are in (and any specific known risks
beyond
the usual risks faced
by
people living in an area if any such specific risks exist);
iii) the difference between
living somewhere and visiting it;
iv) what activities P would be
able to do if he lived in each place;
v) whether and how he would be
able to see his family and friends if he lived in each place;
vi) in relation to the proposed placement, that he would need to pay money to live there, which would be
dealt with
by
his appointee, that he would need to pay
bills,
which would
be
dealt with
by
his appointee, and that there is an agreement that he has to comply with the relevant lists of "do"s and "don't"s, otherwise he will not
be
able to remain living at the placement;
vii) who he would be
living with at each placement;
viii) what sort of care he would receive in each placement in broad
terms, in other words, that he would receive similar support in the proposed placement to the support he currently receives, and any differences if he were to live at home; and
ix) the risk that his father might not want to see him if P chooses to live in the new placement.
27. Dr. Rippon was of the view that Miss B
does not have the capacity to make a decision as to her residence. Dr. Rippon was particularly influenced in reaching this conclusion
because
of Miss
B’s
difficulty with abstract concepts: Dr. Rippon opined that Miss
B
was unable to understand the implications of moving away from her current home, supports, and community. Dr. Rippon was further of the view that while Miss
B
was able to understand “who she would
be
living with at each placement” ((vii) above) she was unable to assess the risk of living with Mr C. While acknowledging the artificiality of this situation, it seems to me that the implications of living with a particular person (and the risks which this may pose) are more appropriately considered under decisions on ‘care’ and contact than residence. Indeed, when cross-examined
by
Mr. Karim, Dr. Rippon accepted that Miss
B
had a “
basic
understanding” in respect of all of the nine areas covered
by
Theis J’s test above.
28. While it is fair to accept, as Mr. Garlick argues, that Miss B
has an almost ‘childlike’ perspective on the issue of her residence, in my judgment it is the factor identified in (viii) above which is the most challenging to interpret or apply on the facts of this case. The Local Authority contends that Miss
B
lacks capacity in this respect
because
she is unable to understand or weigh the sort of care she would receive in each placement, and that if she moved to live with Mr C for instance, she would lose accepted sources of support which she may not
be
able to replicate. I agree that she may not have fully thought-through the implications of a move,
but
the evidence reveals to me that Miss
B
does understand in
broad
terms the care she would receive if she lived with Mr C in contrast to living at home or in residential care. That the relationship with Mr C may pose risks to Miss
B
is a separate issue which I consider under ‘care’ and contact. In this regard, I have reminded myself of the cautionary words which I cited above (see [21]) – namely that I should not impose too high a test of capacity to decide issues such as residence for fear of discriminating against Miss
B.
In this regard, I am not satisfied that the local authority has discharged the
burden
of proving that Miss
B
does not have capacity; I find – as the Official Solicitor argues – that she does have capacity to make decisions in relation to residence.
29. Care . It is agreed that the relevant test would be
that set out
by
Theis J in LBX v K and others [2013] EWHC
3230
at [48] namely:
i) what areas she needs support with;
ii) what sort of support she needs;
iii) who will be
providing her with support;
iv) what would happen if she did not have any support or she refused it and,
v) carers might not always treat her properly and that she can complain if she is not happy about her care.
The funding of care, and the overarching arrangements for monitoring and appointing care staff work are not part of the ‘information relevant’ to the decision.
30.
Dr. Rippon is of the view that Miss
B
does not have the capacity to make decisions about her care: she could not tell Dr. Rippon why having a support worker was important to her to access the community; she could not recognise the importance of structure and routine in her day; she cannot identify the type or amount of support she needs in the home (personal hygiene, managing her medication, or cooking meals), or in managing her own
behaviours;
she denied the need for, or
benefit
of, her respite care home. She does not understand the risks posed
by
Mr C; Dr. Rippon was of the view that she does not understand her own care needs on a day-to-day
basis.
31.
The Official Solicitor accepts that presently there is (per section 48 MCA 2005 ) “ reason to
believe
that [Miss
B]
lacks capacity in relation to” her care provision,
but
that there is a case for offering her (per section 1(
3)
MCA 2005 ) “ practicable steps to help” her to acquire that level of understanding. I disagree that education or practicable help will make a difference. In too many ways (identified in [
30]
above) does Miss
B
fall short (in some respects far short) of a level of understanding of the care which she needs in very many areas of her life such as to enable her to make a capacitous decision. I accept Dr. Rippon’s evidence that care provision is a complex and essentially abstract concept for which discrete educational packages “are not
beneficial
in improving an individual’s understanding”. I propose therefore to make a declaration in this respect under section 15 .
32.
Contact . The “information relevant” to the decision about contact is said to include the list proposed
by
Theis J in LBX v K and others ( supra ) at [45] namely:
i) Who they are, and in broad
terms the nature of her relationship with them;
ii) What sort of contact she could have with each of them, including different locations, differing durations and differing arrangements regarding the presence of a support worker;
iii) The positive and negative aspects of having contact with each person. Theis J added “This will necessarily and inevitably be
influenced
by
[P]'s evaluations. His evaluations will only
be
irrelevant if they are
based
on demonstrably false
beliefs.
For example, if he
believed
that a person had assaulted him when they had not.
But
[P]'s present evaluation of the positive and negative aspects of contact will not
be
the only relevant information. His past pleasant experience of contact with his father will also
be
relevant and he may need to
be
reminded of them as part of the assessment of capacity”;
iv) W hat might be
the impact of deciding to have or not to have contact of a particular sort with a particular person ;
v) Family are in a different category; what a family relationship is.
33.
The Local Authority maintains that Miss
B
lacks capacity in this area. The Official Solicitor accepts that Miss
B
currently does not have capacity
but
submits that she may
be
enabled to acquire capacity, and that I should make this as an interim declaration under section 48 MCA 2005 . In my judgment the evidence strongly reveals that no amount of “practicable help” will enable Miss
B
to develop capacitous decision-making in this area; as I have indicated above (see [17]), she has shown herself to
be
unable to accept the fact of Mr C’s convictions (she has
been
told
by
five different professionals on seven separate occasions about these), and has
been
repeatedly dismissive of attempts to ‘educate’ her as to the convictions and their implications. She simply is not ‘using and/or weighing’ the information. Moreover, she has maintained firm denials of her own conduct in contacting men on the internet or sending inappropriate messages or images, when the opposite is patently known to
be
true. She is unable to explain how she could distinguish
between
a good and a
bad
person. I conclude that Miss
B
lacks capacity in this area, and am of the view that no amount of repeated discussion about the convictions is likely to shift her attitude; I propose therefore to make a declaration under section 15 .
34.
Social media . I set out the context in which I consider this issue in the introductory section (paragraphs [1]-[7]) of my judgment in Re A . I simply propose to adopt that narrative for this judgment, without rehearsing it all again here.
35.
In this case, I am concerned with Miss
B’s
use of her digital device (mobile phone) to communicate
by
Facebook, WhatsApp, and Snapchat,
both
with those who are known to her, and specifically with those who are not known to her. It is that latter category about which I am most concerned for obvious reasons, particularly as she has routinely used social media to disclose personal information about, and/or imagery of, herself to them with a view subsequently to meeting with these strangers.
36.
Counsel in the case of Re A had raised, as Mr Garlick and Mr Karim had raised, as a first question whether social media use should form a sub-set of either ‘contact’ or ‘care’ or whether it is free-standing. I approach this question in this case as I did in Re A at [25] and [26] as follows:
“[25] The first question on which I am asked to rule is 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’. Having heard argument in this case, and in Re B
, I have reached the clear view 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. There 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. As the Court of Appeal made clear in PC v NC and City of York Council [2013] EWCA Civ 478 at [
35],
the court should consider the issues reasonably specifically:
“The determination of capacity under MCA 2005, Part 1 is decision specific …. all decisions, whatever their nature, fall to be
evaluated within the straightforward and clear structure of MCA 2005, ss 1 to
3
which requires the court to have regard to 'a matter' requiring 'a decision'. There is neither need nor justification for the plain words of the statute to
be
embellished”.
[26] 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 [4]), 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.”
37.
I then went on in Re A , materially, to consider the test of ‘relevant information’, adding at [27-
30]
as follows:
“[27] The next question which arises is what is the ‘relevant information’ under section 3(1)(a)
MCA 2005 on which the issue should
be
assessed? Although counsel in this case [ Re A ] prepared an ‘agreed’ formula, I have had the
benefit
of wider argument on the issue in the two cases. Critical to my assessment of capacity in this regard, and the issue on which focus has
been
brought
in this hearing, is what should
be
the “information relevant to the decision” which P needs to understand for the purposes of determining capacity to make a decision to use social media for the purposes of developing or maintaining connections with others (within the functionality / ability test). I have
been
careful not to overload the test with peripheral detail,
but
to limit it to the “salient” factors (per LBL v RYJ [2010] EWHC 2664 (Fam) at [24], and CC v KK & STCC [2012]
EWCOP
2136 at [69]). In applying that discipline, 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.
[28] It is my judgment, having considered the submissions and proposals of the parties in this case and in Re B
, that the ‘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].
[29] 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 [28] 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 [28] 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 [28] 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 [28] 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 [28](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.
[30] I should add that I heard argument on the issue of 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 .”
38.
In an assessment in May 2018, Miss
B
said that she would not talk to a stranger,
but
did not
believe
that someone who she met on Facebook was or would
be
a ‘stranger’. When asked in 2016 about contacts made through social media, Miss
B
was unable to say how she would tell if someone was ‘good’ or ‘
bad’
on Facebook. Miss
B
was further asked two years later (May 2018) how she would
be
able to work out who was a good or not a good person on social media; Miss
B
stated:
“… because
she is talking/texting/messaging with them this in her views means that they are good. I asked how she knows the person is who they say they are, and how does she know they are telling her the truth? [Miss
B]
stated that they are good
because
they are speaking with her and stated she does not think anything else about it. I asked [Miss
B]
how she could keep herself safe. [Miss
B]
stated she would
be
alright and did not give any further information about this.”
39.
She told Dr. Rippon (January
2019)
that the people she met on line were “generally good” and could not contemplate that people may lie online. Dr. Rippon 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.
There is strong evidence that she is victim of the
behaviours
described as ‘conduct risk’ and ‘contact risk’ set out at [4] in Re A . Miss
B’s
behaviours
are not, I am satisfied, merely ‘unwise’. They are attributable to the impairment of her functioning of her mind.
40. On the evidence, I am therefore satisfied that Miss B
currently does not have capacity to decide to use social media for the purposes of developing or maintaining connections with others. I consider that attempts in the form of practicable help should
be
offered to enable her to acquire capacity; until those steps have
been
taken, I propose to make an interim declaration only under section 48 MCA 2005 at this stage.
41. In the event that, after practicable help has been
offered, Miss
B
remains unable to make the decision about social media use, I apprehend that significant issues will arise in the ‘
best
interests’ evaluation in relation to the exercise of her freedoms which are protected
by
Article 10 and Article 8 of the European Convention on Human Rights and Articles 21 and 22 of the United Nations Convention on the Rights of Persons with Disability in the context of her use of the internet; Mr. Karim has helpfully drawn attention to these issues at this hearing. I readily acknowledge that any interference with those rights (
by
way, for example, of supervision, filters, ‘Parental Control Applications’, and monitoring) will have to
be
justified and proportionate. Careful thought will also have to
be
given to the ways which can
be
devised which are effective in limiting or supervising her internet and social media use without
being
unduly “restrictive of [Miss
B’s]
rights and freedom of action” ( section 1(6) MCA 2005 ) .
42. Consent to sexual relations : The final area on which my determination is required is whether Miss B
has capacity to consent to sexual relations. This is a question which is directed to the nature of the activity, rather than to the identity of the sexual partner. In this regard, I have specifically considered the Court of Appeal’s decision in IM v LM and others [2014] EWCA Civ
37,
in which the Court confirmed that the correct approach (per [79]) was as identified in a series of first-instance judgments including the decisions of Munby J (as he then was) in X City Council v MB & NB [2006] EWHC 168 (Fam) and Re MM, Local Authority X v MM [2007] EWHC 2003 (Fam), Mostyn J in D
Borough
Council v AB [2011] EWHC 101 (Fam) and
Baker
J’s decision in A Local Authority v TZ [2013] EWHC 2322 (COP). I have had further regard to the more recent decision of
Baker
J in A Local Authority v P and Others [2018]
EWCOP
10.
43. It is clear that the information relevant to the decision in this area includes:
i) the sexual nature and character of the act of sexual intercourse, the mechanics of the act;
ii) the reasonably foreseeable consequences of sexual intercourse, namely pregnancy;
iii) the opportunity to say no; i.e. to choose whether or not to engage in it and the capacity to decide whether to give or withhold consent to sexual intercourse.
iv) that there are health risks involved, particularly the acquisition of sexually transmitted and transmissible infections;
v) that the risks of sexually transmitted infection can be
reduced
by
the taking of precautions such as the use of a condom.
44. All assessments of Miss B
in this respect have revealed that she understands the mechanism of the sexual act. As I earlier indicated, in 2016, a mental capacity assessment concluded that Miss
B
lacked capacity to consent to sexual relations
because
she did not understand the risk of sexually transmitted infection. Later assessment, following a period of education, (see [15] above) concluded that Miss
B
did understand that risk, had retained that information, and was able to weigh the information, sufficiently to satisfy professionals that she was capacitous in this regard. That said, there was some doubt about whether the professional conducting the assessment had done so applying the correct test ( IM v LM, AB and Liverpool City Council [2014] EWCA
37).
45. The evidence placed before
me reveals that she continues to understand the mechanics of sexual intercourse and the risk of pregnancy (per Dr. Rippon). The evidence however reveals that she is once again less objectively clear in her understanding or appreciation of the risks of sexually transmitted infection. She recently told the social worker that she did not consider that risk of a sexually transmitted infection arose unless the male had a “dirty penis”, and that as Mr C has a shower in his house (“and he had a clean dick and showered every day”), this risk would not arise. I regard this as such a flawed appreciation (her ‘using or weighing’) of the risks of sexually transmitted infection through sexual relations that it falls outside a proper ‘understanding’ for the purposes of section
3
; indeed her ‘appreciation’ of the risks would
be
likely to give her a false sense of security on the issue. Dr. Rippon was not sure why Miss
B’s
appreciation of sexually transmitted infection appears to have changed,
but
felt that with some practicable help, her understanding could potentially
be
restored and/or improved.
46. The Official Solicitor has argued that Miss B
does have capacity in this area, and that this lack of clarity over the sexually transmitted infection is of no material consequence. I do not agree, and share Dr. Rippon’s view that Miss
B’s
understanding of the information relevant to sexual relations is currently erroneous, and that currently therefore there is reason to
believe
that Miss
B
lacks capacity in relation to this matter . The local authority proposes some education for Miss
B
in this area, with a view to re-assessing the capacity question once she has had that practicable help. I concur with this approach and propose to make an interim declaration under section 48 pending the completion of the delivery of this practicable help.
Conclusion
47. My conclusions are therefore as follows:
i) I declare that Miss B
lacks capacity to litigate in these proceedings; this is a final declaration under section 15 MCA 2005 ;
ii) I declare that Miss B
lacks capacity to manage her property and financial affairs; this is a final declaration under section 15 MCA 2005 ;
iii) I find that Miss B
has capacity to decide where she resides;
iv) I find that Miss B
lacks capacity in relation to her decisions on her package of care, and would not
benefit
from a programme of help in this regard; I propose to make a final declaration that she lacks capacity in this respect under section 15 MCA 2005 ;
v) I find that Miss B
lacks capacity in relation to her decisions on contact , and would not
benefit
from a programme of help in this regard; I propose to make a final declaration in this respect under section 15 MCA 2005 ;
vi) I have r eason to believe
that Miss
B
lacks capacity in relation to her decisions to use social media for the purposes of developing or maintaining connections with others and propose to make an interim declaration under section 48 MCA 2005 , directing a programme of work to offer her practicable help in this regard;
vii) I have r eason to believe
that Miss
B lacks capacity in relation to her ability to consent to sexual relations and propose to make an interim declaration under section 48 MCA 2005 , directing a programme of work to offer her practicable help in this regard.
48. That is my judgment.