Capacity is decision specific

Posted on: March 1st, 2019

Hannah Rowlatt from the Court of Protection Team at Coffin Mew comments on a recent case regarding whether an individual has capacity to make various decisions, specifically around the use of social media and consenting to sexual relations.

A recent case of B (Capacity: Social Media: Care and Contract) [2019] EWCOP 3 has again highlighted that the issue of capacity is decision-specific, and each decision should be considered. In this particular case, the Court had to determine whether the individual in question, (‘P’) had capacity to determine the following:

  • Capacity to litigate in the proceedings
  • To manage her property and financial affairs
  • To decide where she should reside
  • To decide on her package of care
  • To decide who she has contact with.

The main issues to be determined were whether P had capacity to communicate via social media and to consent to sexual relations.

P suffers from epilepsy and a learning disability, and has considerable social care needs. P’s social media activity had caused repeated concern to her adult social care workers. Concerns were raised about P sending explicit sexual messages, intimate photographs, and money to men who were not known to her, but who she referred to as her “boyfriends”. It was through this behaviour that she met Mr C, a man in his seventies who is a convicted sex offender, classed as ‘medium/high risk’. P refused to believe Mr C’s offending history, despite being advised of the risks posed by him. She remained in regular contact with him and met him several times. On at least one occasion, she has stayed overnight with him at his home. Messages sent to P by Mr C revealed that he describes her as his ‘mistress’ or his ‘slave’.

In relation to sexual activity, the court had to decide whether P understood the risk of pregnancy and sexually transmitted diseases.

After careful consideration of the evidence, the Court ruled that P did have capacity to decide where she should reside. However, the Court also ruled that P lacked capacity in relation to the following:

  • To litigate in the proceedings
  • To manage her property and financial affairs
  • To decide on her package of care
  • To decide who she has contact with.

The Court ruled that P currently does not have capacity to decide to use social media for the purposes of developing or maintaining connections with others. The Judge stated that practicable help should be offered to enable P to acquire capacity.

The Court ruled that P lacks capacity to consent to sexual relations. The local authority proposed some education for P in this area, with a view to re-assessing the capacity question once she has had that practicable help.

Hannah Rowlatt, Court of Protection solicitor, commented on the case and the importance of understanding capacity for decision making:

“I often hear family members describing that the individual ‘doesn’t have capacity’. I would urge all families and friends assisting vulnerable people to remember that capacity is decision specific.

An individual may not have capacity to manage the entirety of their property and financial affairs, but they may have capacity to decide where they should live or who they should see. Practical steps should be taken to offer help and guidance to individuals to allow us to determine whether they have capacity on the issue in hand. Help and guidance may facilitate the individual to be able to make the decision themselves.

This case is also interesting, as it addresses the issue of capacity around the use of social media and using such media to develop relationships.

Clear practical help and guidance should be offered to ensure that the individual is protected in this era of social media boom.”

If you require further advice on issue surrounding capacity, please contact Hannah Rowlatt or a member of the Court of Protection team here.