Re B (Capacity: Social Media: Care and Contact)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cobb |
| Judgment Date | 21 February 2019 |
| Neutral Citation | [2019] EWCOP 3 |
| Docket Number | Case No: 13281081 |
| Date | 21 February 2019 |
| Court | Court of Protection |
[2019] EWCOP 3
IN THE COURT OF PROTECTION
Coverdale House
East Parade
Leeds
THE HONOURABLE Mr Justice Cobb
Case No: 13281081
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.
Introduction
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]).
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.
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
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).
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).
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
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).
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.
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.
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.
Background
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).
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.
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.
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...
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