Introduction

The case of Re B (Capacity: Social Media: Care and Contact) [2019] EWCOP 3, adjudicated by the England and Wales Court of Protection on February 21, 2019, marks a significant development in the realm of mental capacity law, particularly concerning the use of social media. The central figure in this case, Miss B, a woman in her 30s with learning disabilities and epilepsy, presented complex capacity questions ranging from managing her property to consenting to sexual relations. However, the most novel aspect addressed was her capacity to use social media for developing or maintaining personal connections.

Represented by Simon Garlick for the Local Authority and Sam Karim QC alongside Francesca P Gardner for Miss B, the proceedings sought to determine Miss B's capacity across various domains, with a keen focus on the implications of her social media use.

Summary of the Judgment

Justice Cobb meticulously evaluated Miss B's capacity across seven key areas. The court concluded that Miss B lacked the capacity to litigate, manage her property and financial affairs, decide on her care package, determine her contact with others, consent to sexual relations, and use social media for developing or maintaining connections with others. However, the court found that she retained the capacity to decide her residence.

Particularly noteworthy is the court's handling of social media use, which it recognized as a distinct subset requiring separate assessment. The judgment emphasized the unique risks associated with online interactions, such as exposure to exploitation and harmful content, underscoring the necessity of evaluating capacity in this context independently of general contact and care decisions.

Analysis

Precedents Cited

The judgment heavily referenced prior case law to shape its reasoning. Key cases include:

• Re A (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP 2: Addressed similar capacity issues regarding social media use, providing a foundation for assessing Miss B's capacity.
• Parker J in NCC v PB & TB [2014] EWCOP 14: Influenced the consideration of external influences on decision-making capacity.
• Baker J in PH and A Local Authority v Z Ltd & R [2011] EWHC 3230 (Fam): Highlighted the need to avoid discriminatory practices in assessing capacity, especially concerning residence decisions.
• Masterman-Lister v Brutton & Co. (No.1) [2002] EWCA Civ 1889: Provided the test for assessing capacity to litigate through understanding relevant information.
• Other relevant cases, such as IM v LM and others [2014] EWCA Civ 37, and City of York Council [2013] EWCA Civ 478, were also instrumental in shaping the judgment.

These precedents collectively underscored the necessity of a decision-specific and nuanced approach in capacity assessments, especially in modern contexts like social media usage.

Legal Reasoning

Justice Cobb applied the statutory framework of the Mental Capacity Act 2005 (MCA 2005), particularly focusing on sections 2 and 3, which define incapacity and the criteria for assessing it. The court emphasized a functional approach, evaluating whether Miss B could understand, retain, use or weigh relevant information, and communicate her decisions effectively.

In addressing social media use, the court determined it should be treated distinctly from other forms of contact and care. The reasoning highlighted the inherent risks of online interactions, such as the potential for exploitation and exposure to harmful content, thereby necessitating a separate assessment of capacity in this domain.

Furthermore, the court balanced Miss B's autonomy against the need for protection, adhering to the MCA's presumption of capacity and ensuring that any restrictions were justified, proportionate, and based on a thorough understanding of Miss B's abilities and vulnerabilities.

Impact

The judgment in Re B sets a pivotal precedent in the assessment of capacity concerning social media use. It delineates the need for specialized criteria when evaluating online interactions, recognizing the distinct challenges posed by digital communication platforms.

Future cases will likely reference this judgment when determining capacity in similar contexts, ensuring that courts approach digital autonomy with the necessary specificity and caution. Additionally, it reinforces the importance of individualized assessments, avoiding blanket restrictions that could infringe upon the rights and freedoms of individuals with disabilities.

Complex Concepts Simplified

Mental Capacity Act 2005 (MCA 2005)

Capacity Assessment

Sections 15 and 48 MCA 2005

Best Interests

European Convention on Human Rights

Conclusion

The judgment in Re B [2019] EWCOP 3 is a landmark decision that extends the application of the Mental Capacity Act 2005 into the digital age, specifically addressing the complexities of social media use. By delineating social media as a distinct area requiring separate capacity assessment, the court underscores the evolving nature of personal autonomy and protection in an increasingly connected world.

This case reinforces the need for courts to adapt legal frameworks to address modern challenges, ensuring that individuals with disabilities are neither unjustly restricted nor inadequately protected. It emphasizes a balanced approach that respects autonomy while safeguarding vulnerable individuals from potential harms inherent in digital interactions.

Moving forward, Re B serves as a crucial reference point for legal practitioners, guardians, and policymakers in navigating the intricate intersections of capacity, technology, and human rights.