Sam Karim QC and Francesca P. Gardner were involved in the first reported case in the Court of Protection addressing the test for capacity to make decisions about the use of social media and the internet.

On 22 February 2019 Cobb J handed down two linked judgments, in Re A: (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP 2 and Re B (Capacity: Social Media: Care and Contact) [2019] EWCOP 3. Sam Karim QC and Francesca P.Gardner were instructed by Kate Jackson (Director at MJC Law) through the Official Solicitor to represent Miss B.

At the outset of the judgment the court acknowledged the central importance of the internet and the use of social media to those with disabilities, including by reference to the Convention on the Rights of Persons with Disabilities (CRPD). Cobb J recognised that the use and development of the Internet and social media in recent years has fundamentally reshaped the way people engage with each other, and as a society.

In Re B, the court was tasked with considering whether: (a) any assessment of a person’s capacity to make decisions as to the use of social media and the internet should be a separate decision, given that usually it falls to be considered within assessments relating to contact with others and the care a person should receive; and (b) if the use of social media is to be a separate decision, then to determine the relevant information that a person would be expected to understand, use, weigh and retain to make the decision.

In relation to the first issue, Cobb J concluded as follows:

‘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”.

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.’

In relation to the second issue and the relevant information for the purposes of a decision to use social media and the internet, Cobb J concluded as follows:

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:

1. 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;
2. 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];
3. 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];
4.  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;
5. 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;
6. 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…’

The judgments will provide much needed clarity to practitioners in order to ensure that the rights of the vulnerable are protected as regards the use of social media but to also allow professionals to protect the vulnerable from online exploitation and abuse.

The court was also assisted in this case by a Social Media Report prepared by Kings Chambers pupil Sophie Hurst, also mentioned in the judgment, which can be found here.