In a short judgment delivered in April 2020, but only appearing on Bailii in late August 2021, HHJ Mark Rogers made two striking observations about capacity. The first was specific to the decision in question – whether the subject of the proceedings had capacity to make decisions about accessing social media and the internet. The second was of much broader application.
The case, C (Capacity to Access the Internet and Social Media)  EWCOP 73, concerned a 28 year old woman, C, with a diagnosis of moderate intellectual disability. She lived in residential care and:
- As a young woman, understandably, she has sexual needs and desires. Similarly, she is no different from the majority of her peers in gaining pleasure and fulfilment from the use of the Internet and social media. This is the context for the current issue.
- In 2017 a significant number of graphic sexual images were discovered on C’s electronic devices. Some content was extreme and worrying. The local authority was authorised to place restrictions upon her use of electronic media. A Police investigation was launched, given the suspicion that some of the content crossed into the realm of the criminal law and C was subject to bail conditions for a protracted period. Ultimately, the Police investigation concluded that there was insufficient evidence to justify a prosecution and, in any event, that such would not be in the public interest. The Police acted entirely independently of the Court but, in my view, the decision taken was both fair and humane.
The question of C’s capacity to access the internet and social media was now before the court. HHJ Rogers directed himself by reference both to the first principles derived from the statutory framework but also to the decision of Cobb J in Re A (Capacity: Social Media and Internet Use: Best Interests)  EWCOP 2. That case, read alongside Re B (Capacity: Social Media: Care and Contact)  EWCOP 3, was, in HHJ Rogers’ view “a very useful practical guide to the approach to cases in this category. Whilst facts vary from case to case, Cobb J provides a helpful route map through the issues likely to be in play. Although a decision at first instance, it carries the authority of a hugely experienced Tier 3 Judge.” There was an expert report from a Dr Lilley which made clear her view that C lacked capacity in this regard. As HHJ Mark Rogers continued:
- Were it simply a question of evaluating the evidence as a whole and forming a view based upon Dr Lilley’s report, then this would be a relatively straightforward exercise. However, Mr Bellamy takes two separate points on behalf of the Official Solicitor which he submits go to the decision on capacity, even if I am inclined to accept the clinical findings and methodology of Dr Lilley.
- Put shortly, Mr Bellamy submits that there is the danger of an over complicated or sophisticated application of Re A, which will have the tendency to be restrictive of the autonomy of people like C because of such an overly paternalistic application of it. Linked to that he also submits that an unduly analytical approach to what might in general terms be characterised as “understanding” and the other aspects of the functionality aspect of the statutory test will lead to an undesirably restrictive approach.
In particular, it was argued on C’s behalf:
it is dangerous to set the bars of understanding and weighing too high as the result is likely to entail unnecessary findings of incapacity when compared to the often superficial or casual approaches of a large cohort of otherwise capacitous individuals who may not have a severe intellectual deficit but nevertheless are, comparatively speaking in the population, unsophisticated. They, he argues, frequently and without consequence make risky and poorly reasoned decisions.
HHJ Rogers, however, whilst noting that this “attractively presented” argument obviously raised “difficult legal and philosophical questions,” was not persuaded that the approach set out in the report of Dr Lilley involved “an elaborate and unnecessarily cerebral approach which runs counter to the statutory language or the helpful route map of Re A”. He continued:
- Cobb J in Re A, specifically in paragraph 27, addressed the question of the correct approach to the “relevant information” issue and set out in broad terms, in succeeding paragraphs, the key factors. The language he uses is practical and clear and directs the reader (or assessor) to the real day to day issues likely to be in play. Further, the qualifications in paragraph 29 are, in my judgment, specifically designed to ensure that an unnecessarily narrow approach is avoided.
- Re A was a decision on its facts and too close a comparison is dangerous. However, I am struck by the terms of paragraph 31 where Cobb J summarises the evidence of the expert in his case. That expert, rather like Dr Lilley, had explored not only the superficial engagement with the criteria but the reality for A in that case. The assessment was described by Cobb J as appropriate, revealing the “deficits” in understanding and weighing ability. It is an example of a carefully refined test without descending into the purely academic. Whilst the particular factors in Re A are irrelevant to my decision, I am quite satisfied that there is an equivalence of appropriateness in the methodology of Dr Lilley.
On the facts of the case, therefore, HHJ Rogers found that C lacked capacity in this domain. The local authority had been careful to place the decision in its timely context, on the basis that there may come a point where, as a result of the reinforcement and education, she may have a durable ability to retain and understand the relevant information. HHJ Rogers hoped that may be so, but confessed to reservations.
HHJ Rogers, in an observation which has wider resonance, also noted that:
- […] whilst the local authority welcomes and encourages practical strategies to assist C and recognises the benefit of support in the area of technology and its use, Mr Johnson’s realistic submission was that there comes a point where support and encouragement becomes so integral to the decision making process that, in reality, the individual concerned is little more than an automaton who is simply carrying out the instruction of others rather than responding to prompts and making capacitous personal decisions. His submission was that for C, at this point in her personal development, that would be the reality as there would have to be continuous one to one supervision and support of her use of technology.
HHJ Rogers accepted the force of this submission. Having found that C could not understand, retain and weigh the relevant information independently, he continued:
- […] if the process could only really occur with the degree of supervision and prompting suggested then that would, in truth, be a fiction rather than a genuine exercise in autonomy. It would probably also be impractical in the care setting.
HHJ Rogers’ ringing endorsement of the “route map” laid down by Cobb J in Re A should, perhaps, be read in its context. This was an avowedly brief judgment, delivered under the exigencies of the first wave of the COVID-19 pandemic. It means that we do not get a clear sense of the precise reason why the local authority was seeking to control C’s access to the internet and social media, but it appears that it may well have been in order to ensure that she was not exposed again to the risk of criminal prosecution. If this were the case, the case therefore raises somewhat similar issues to that of JB, in which the Supreme Court is grappling at the time of writing (September 2021) with the fact that the MCA does not exist in isolation but rather has a very complex relationship with the criminal law with its similar, but distinct, considerations of capacity in the context of criminal responsibility. The Supreme Court in JB is also grappling with an underlying issue in C’s case, namely that there is, in truth, an inescapable normative element to capacity. In other words, asking what information is relevant to the decision in question is, in truth, asking what information should be relevant to the decision. Cobb J had been alive to this in Re A in the context of social media and the internet, HHJ Rogers was alive to it in this case, and the issue in JB, in turn, can arguably be reduced to the question of whether society expects that people should understand that a sexual partner needs to be consenting to the sexual act in question.
As noted above, it appears that HHJ Rogers was being asked to consider questions of internet use in the context of potential criminal acts (albeit with lurking questions of whether any such acts would attract criminal responsibility on the part of C). It should be remembered that accessing the internet and/or social media may also be something that the person in question is seeking to do for quite different purposes, and it is suggested that alongside Cobb J’s route map should also be read the decision (subsequent to that in C) of Williams J in Re EOA, in which the latter sought carefully to distinguish between general access to the internet, and access for purposes of seeking to make contact with specific people.
The second observation of HHJ Rogers, about the point at which support stops and substitute decision-making takes over, is one that is pithily framed. Put in domestic MCA 2005 terms, it reminds us of an important limit to the crucial requirement in s.1(3) MA 2005 that it is legally impermissible to reach a conclusion that a person lacks capacity to take a decision unless all practicable steps have been taken to support them. Beyond a certain point, and as HHJ Rogers made clear, the provision of support runs the risk of setting up a fiction which may be superficially comforting, but in fact means that hard-edged questions about who is doing the supporting and on what basis may be dodged. His observation, in turn, then gets to the heart of debates about which much ink has been spilled in the context of the UN Convention on the Rights of Persons with Disabilities (a summary of the issues can be found in this report from the Essex Autonomy Project, especially at section 6.5): i.e. whether in pursuit of the goal of securing legal capacity for those with disabilities on an equal basis with others it is better to proceed on the basis that some people, at some points, may need “100% supported decision-making,” or to proceed on the basis that some people, at some points, may need decisions to be taken by others.