The article originally appeared in Issue 2 (July 2019).
A 31 year old woman with learning difficulties had, through social media, shared intimate images of herself and become involved with a 71 year old convicted sex offender (‘Mr C’), with whom she wished to live and start a family. The Local Authority (‘LA’) applied for declarations as to her capacity to make decisions regarding residence, care, contact, social media and sexual relations. The Claimant lived with her parents and lacked capacity to litigate. Proceedings were conducted on her behalf by the Official Solicitor (‘OS’).
The first instance judgment
Cobb J considered that the Mental Capacity Act 2005 (‘MCA’) required a strict decision-specific approach, despite the potential for inconsistent results for closely related decisions. Applying this approach, he held that the Claimant had capacity to understand the relevant information as to residence decisions, having regard to the list of criteria set out in LBX v K,L,M  EWHC 3230 (Fam) at . He expressed misgivings as to how to apply these criteria on the issue of the Claimant’s understanding of who she would be living with and what sort of care she would receive. However, in broad terms he considered she would understand these matters, even if she had not fully thought through the implications of the move.
By contrast, when considering the LBX criteria specific to the issue of whether the Claimant understood information relevant to care decisions, he held she did not have capacity. Amongst other things, she could not identify the type or amount of support she required or understand her own care needs on a day-to-day basis, nor would education enable her to do so. The judge made a declaration to this effect and also in relation to her lack of capacity to make decisions about contact, again applying the LBX criteria specific to this concern and concluding that she lacked understanding in relation to the Mr C’s criminal convictions or how to distinguish between good and bad persons online. Again, the judge did not think guidance would enable her to understand these matters.
In relation to the unique threats posed by the use of social media, Cobb J referred to his own recent judgment in Re A  EWCOP 2 which also involved a claimant with learning disabilities who had shared intimate photographs of himself online but who had additionally shown an interest in accessing extreme pornography with paedophilic content. The judge identified a number of matters required to demonstrate capacity in this context, including an understanding that posting rude or offensive material could upset others or constitute a criminal offence. In the Claimant’s case, the judge considered that she lacked capacity as she did not understand who was a stranger online or contemplate that such people might lie or be capable of harming her. He made a declaration, but only on an interim basis because, with assistance, she might acquire capacity to use social media for the purposes of developing or maintaining connections with others.
The judge also considered that the Claimant lacked capacity to consent to sexual relations. Whilst she understood the nature and mechanics of the act of intercourse and her right to say no, she did not, on the evidence, currently understand the risk of STDs or how to reduce this risk. However, with assistance she might understand this, hence an interim declaration was also made in this respect.
The OS’s grounds of appeal
The OS argued that Cobb J’s formulation of what was required to demonstrate capacity to use social media and the internet was flawed by the inclusion of criteria from his judgment in Re A that were irrelevant to the Claimant’s case, namely the potential to cause offence to others or commit crimes by sharing media. Secondly, he had erred in relation the Claimant’s capacity to consent to sexual relations by considering further irrelevant criteria and in his approach to her understanding of the right to say no and the prevention of STDs.
In dismissing the OS’s grounds of appeal the court recognised, at , that it must always be careful not to discriminate against persons suffering from a mental disability so as to impose too high a standard of capacity.
As to the capacity to use social media, the fundamental problem with the OS’s position was that it constituted an attack on the judge’s reasoning rather than an appeal against the judge’s finding that the Claimant lacked capacity to use social media as desired . The court did observe that any list or guideline of relevant information is no more than guidance to be adapted to the facts of the particular case and noted the LA’s acceptance that, to the extent that such a list concerned things that the Claimant had never done, intended to do so or was likely to do, they would be irrelevant. It also noted that the Claimant’s carers would act in her best interests which may allow use of social media with appropriate safeguards in future.
As to the capacity to consent to sexual relations, it was noted that the test was “general and issue specific, rather than person or event specific”, although this was currently under consideration by Hayden J in the case of London Borough of Tower Hamlets v NB  EWCOP 17 (see In Brief section below) . The court disagreed with the OS’s submission that Cobb J had confused the relevant information for determining the capacity to consent to sexual relations with the actual decision whether or not to give consent .
As to the need to understand the risk of STDs and how to reduce that risk, the court noted that section 3(4) of the MCA provides that “information relevant to a decision includes information as to the reasonably foreseeable consequences of deciding one way or another”. This is reflected in paragraph 4.16 of Chapter 4 of the Code of Practice which provides that “relevant information includes the likely effects of deciding one way or another or making no decision at all” .
The court concluded that to demonstrate capacity in this context the Claimant must have the ability to understand the risk of STDs and the protection provided by the use of a condom when explained to her, and the ability to retain that information for a period of time so as to use it or weigh it in deciding whether to consent to sexual relations . The court noted that further work was required to see if the Claimant had sufficient understanding of these matters, having been assessed as having had it on previous occasions .
The LA’s grounds of cross-appeal
The LA also criticised Cobb J’s use and application of the LBX criteria and the Court noted again that “we see no principled problem with the list provided that it is treated and applied as no more than guidance to be expanded or contracted or otherwise adapted to the facts of the particular case” . The LA argued that the judge’s conclusion that the Claimant had capacity to decide where to reside failed to take into account relevant information as to the consequences of the decision and produced an irreconcilable conflict with his decisions on capacity elsewhere, making the LA’s task in caring for the Claimant practically impossible. The court agreed, noting again the requirements of section 3(4) of the MCA and the relevant paragraph 4.16 the Code of Practice. The decision that the Claimant had capacity to decide where to live directly conflicted with the conclusion that she did not have capacity to make decisions as to contact, care and whether to have sexual relations.
(i) However nuanced or complex an area of law, the basic principle remains that appeals lie against the orders of the court, not its reasoning.
(ii) Guidelines such as those that appear in LBX or Re A must be tailored to the individual case.
(iii) Whilst the approach to individual capacity questions is decision-specific, it is necessary to step back and consider whether those individual questions lead to fundamentally incompatible conclusions.
(iv) The interim declaration and the court’s observations in relation to the use of social media reflects the importance of social media to those with learning disabilities. Cobb J in Re A had noted at paragraph 2 of his judgment that “the internet and associated social media networks are particularly important for people who have disabilities, and/or social communication problems. They enable ready access to information and recreation, and create communities for those who are otherwise restricted in leaving their homes.”
(v) The declaration that the Claimant lacked capacity to consent to sexual relations was also made on an interim basis, subject only to her demonstrating, as she has in the past, an understanding of the risk of STDs and how to reduce that risk. This is a reminder of the key principle, as enshrined in s.1(4) of the MCA, that a person is not to be treated as unable to make a decision merely because he or she makes an unwise decision. As recognised by the court, “cases such as this involve two broad principles of social policy which, depending on the facts, may not always be easy to reconcile. On the one hand, there is a recognition of the right of every individual to dignity and self-determination and, on the other hand, there is a need to protect individuals and safeguard their interests where their individual qualities or situation place them in a particularly vulnerable situation: comp. A.M.V v Finland (23.3.2017) ECtHR Application No.53251/13” .