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Landmark ruling: Vulnerable man ‘lacks capacity to use the internet’

mobile_phone___laptop.pngIn an unparalleled case, a judge has intervened to prevent a man from sharing naked pictures of himself on the internet, after ruling that the man does not understand his actions.

Stringent supervision

The individual, a 21-year-old male with learning difficulties, is no longer allowed to access the internet or social media unless he is under stringent supervision. The case is one of two cases that have gone before the Court of Protection on the same point and marks the first in which an individual’s capacity to use the internet has bee considered.

The man is the subject of a Court of Protection ruling after it was found that he had ‘shared explicit pictures of himself, searched for child pornography and communicated with men who were implicated in one of the UK’s biggest child sex grooming operations’.

Mr Justice Cobb said at his ruling earlier this year that the man, who cannot be named for legal reasons and is referred to only as ‘A’, did not comprehend that he was searching for ‘illegal, extreme and sexual content’. He added that when unsupervised, “‘A’ is known to search compulsively for pornography and he has, worryingly, developed a considerable interest in sites showing paedophiliac and extreme, even illegal, sexual activity; he cannot read nor understand the warnings regarding content and safety.”

Intimate photographs sent

Fears regarding the man’s internet use first came to light in 2016 when he lived at home with his parents. They discovered that ‘A’ (who identifies as a gay man) had sent intimate photographs of his genitals to men he did not know through social networking site Facebook. His social worker at the time also reported that he had a “compulsion to communicate with others online seems to override any concern he may have for his own safety”.

‘A’ later revealed to a support worker that he had been raped on two separate occasions after he made contact with unknown men he had met online. This admission however, resulted in the launch of a joint police and social work investigation which found that ‘A’ had been frequently accessing extreme pornography, some of which was illegal.

It also became apparent that A had contacted a number of men who were known by police to be sexual predators / sex offenders known within the Operation Sanctuary, the investigation into modern day slavery, trafficking and sexual exploitation launched by Northumbria Police in 2014.

According to Mr Justice Cobb, there was a concern by police investigating that if ‘A’ continued to behave in this manner there was an increasing “risk that he would not just be a victim but could become a perpetrator of offences concerning internet imagery due to his lack of understanding around the subject”.

Landmark ruling

The case is the first time that the court has given guidance about how to assess if an individual has capacity to use both the internet and social media.

The ‘relevant information’ which needed to be understood by ‘A’ in order for him to have the mental capacity to use the internet and social media was listed in detail by Mr Justice Cobb and included that:

  • Some individuals are not who they say they are when communicating online
  • Offensive or rude images may upset others
  • Information and images that are shared on the internet can be shared widely and cannot be stopped
  • Privacy settings may limit some sharing
  • It may be a crime if extremely rude images, messages or videos are viewed online

The judge concluded that due to shortfalls in his ability to understand the above concepts, ‘A’ ‘lacks capacity to use the internet or social media’.

‘A’ now resides in supported living accommodation and is subject to an internet safety care plan which has been drafted by his local authority. The care plan includes timed use of iPads, whilst under supervision, and a financially capped phone contract with no internet usage.

Furthermore, staff at his supported living residence have expressed that he is “dexterous and canny” in deleting his call and message history, meaning they are required to check his phone for messages on a daily. Staff have also been warned they should maintain “a high degree of vigilance” around their own digital devices.

As there is no other previously reported case which details exactly what this “relevant information” is, this judgement will provide beneficial precedent for social care, health workers and case managers when dealing with similar concerns regarding exploitation.

Ruth Wright, Head of Court of Protection here at PRD, comments:

This is an interesting case and one which potentially has a wide reaching impact. Social media and the internet are part of normal life for most people. Access to the internet can be invaluable for many individuals because it is a vital part of their social life, allowing them to keep in touch with friends, make friends and have social contact with people. This is particularly the case for disabled people, and for many of our clients who have brain injuries denying them access to the internet and social media would be very restricting. The judge has tried to find a balance between protecting people who are very vulnerable but allowing them access to a resource that most of us enjoy. The two cases that the Judge dealt with have provided some useful guidance about the test for capacity to use the internet and social media, applying the test on the ground may prove challenging for professionals working with clients who lack capacity.

Read how Ruth and our dedicated team of Court of Protection solicitors have helped our clients following serious injury.

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Ruth Wright is Head of the Court of Protection team and has 13 years of experience of acting as a professional Court of Protection deputy, as well as a Trustee for both children and adults. Should you have any queries about Court of Protection issues or indeed any other aspect of this article and wish to speak to Ruth or any other member of the team, please contact us on 0161 237 5888 or email Ruth directly.