This unique case from the UK brings to light the fine balance courts have to maintain between a disabled consumer’s rights and his or her need for ‘protection’ from engaging in risky behaviour. This is never more so than when the consumer is assessed as lacking capacity, which, in this legal sense, means a person does not have the intellectual and/or cognitive ability to consider and fully understand the consequences of their actions or behaviours.
This recent decision concerns such matters in relation to social media usage.
The case involved a 21-year-old, ‘AC’, who identified as a gay male. He had a learning disability, with an impairment in adaptive social and executive functioning. If he had not been provided with support, he would not have been able to manage his personal and domestic care needs. He had been in independent supported living for most of the past two years, and received extensive personal social care support.
Concerns about AC’s internet usage first arose in early 2016 when he was living at home. His parents found he had used his Facebook account to share, with unknown males, intimate photographs and videos of his genitals.
His social worker said AC’s “compulsion to communicate with others online seems to override any concern he may have for his own safety”. AC had a very low literacy level. He used the photographs and videos, accompanied by short, simple but indisputably provocative words, to communicate with other men.
AC’s low literacy had severely impaired his ability to navigate the internet safely. He would often visit extreme pornographic sites by clicking on a series of suggested links. When unsupervised, he was known to search compulsively for sites showing paedophiliac and other illegal sexual activity. He clearly could not read nor understand the warnings regarding the content and safety of such sites.
Further complicating AC’s submissions to the court were that AC had confided to a support worker that he had been raped twice by an identified male adult. An officer investigating the matter was concerned that if AC did not change his behaviour, he too might become a perpetrator of such offences “due to his lack of understanding around the subject”.
When these proceedings were issued, it was known that AC was continuing to find ways of associating with perpetrators of sexual exploitation online. On one occasion, in May 2017, after his own device had been temporarily withdrawn, he obtained a staff member’s mobile and accessed over 150 extreme pornography sites.
In April 2018, AC sent unsolicited text messages to the male who had been identified as the alleged perpetrator of the rape referred to above. AC said he did not know why he had done this, and could not identify any problems with doing so. In evaluating this conduct, the community nurse and social worker drew attention to the uncertainty about whether AC’s behaviour revealed a deficit in one of the areas of his functioning, or whether he was merely impulsive, risk-taking and/or ‘unwise’.
The clinical psychologist, treating doctor and community nurse jointly submitted that AC “does not understand the risks and benefits which contact with others presents to him: his learning disability does result in a lack of understanding which impairs his ability to weigh the costs and benefits of contact, although there is a compulsive element to his behaviours”.
The internet is important for people with disabilities and/or social communication problems. It enables ready access to information, recreation and communities for those who are restricted in leaving their homes. The internet and social media networks offer users with disabilities opportunities and enhanced autonomy, they provide a means to express social identity, and they enable the learning of new skills and the development of careers. The importance of creating and maintaining ready access to electronic and digital technology for people with disabilities is well recognised – it is identified as a right within the United Nations Convention on the Rights of Persons with Disability (UNCRPD).
Article 9 of the UNCRPD requires states (UK and Australia are signatories) to take appropriate measures to enable those with disabilities to “live independently and participate fully in all aspects of life” and to have “access on an equal basis with others … [to] information and communications technologies and systems”.
There is also a requirement on states to eliminate barriers to accessibility for people with disabilities to “information, communications and other services”.
Article 21 provides a complementary provision, for people with disabilities, to “exercise the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice” by “encouraging the mass media, including providers of information through the internet, to make their services accessible to persons with disabilities”.
Article 22 enshrines the right to privacy for people with disabilities.
Here’s the rub: where does the balance sit between inherent human rights, enshrined in legislation, and the protection of the ‘vulnerable’ (a state obligation)?
After due consideration, the court came down on the side of ‘protective court orders’ for consumer AC.
The court pronounced: “In considering [AC’s] best interests, I have had regard to the local authority’s draft ‘internet access and safety’ care plan. This provides for [AC] to use one of the iPads owned by [the service provider] for a limited period each day, under a degree of supervision; his phone contract is financially capped, and his mobile device does not have the capability to access the internet. He has agreed that staff may check his mobile phone for messages on a daily basis to support him in dealing with unwanted text messages, and to ensure that he is not engaging in inappropriate communications with others.”
No matter what your general ‘human rights’ stance is, it is easy to imagine that in light of AC’s conduct and history, if something untoward had occurred, the state would probably be found legally liable in negligence and/or breach of their statutory duty towards AC as a vulnerable consumer.
Scott Trueman is a senior lecturer in the School of Health at the University of New England.Do you have an idea for a story?
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