MCA social media

[greentreee]

Hello, has anyone gone through the process of MCA for social media use for there adult daughter/son? Wondering how hard it is to get lack of capacity agreed and if it was agreed what was the outcome? Also can a private professional do this MCA & if you do not agree can you challenge outcome? Thanks.

[Hidden]

I wanted to offer CoP Rulings from The Court of Protection that expressly speaks to this question you raise.

However, your question MAY be disfigured somewhat.

For example is there a case number (ruling) already with the CoP that has determined that THE 'adult daughter/son' lacks mental capacity and if so what direction is taken from The Mental Capacity Act 2005 issued by order of the court to appoint a Deputy - either Lay or Professional, also, which area of deputyship is appointed (if any) - property and financial affairs or personal welfare?

Your question is very specific to a social media use of an implied mental capacity consideration to challenge a decision already taken, perhaps informally, to publicise media that relates to a person with a reasonably believed or known lack of mental capacity.

In that sense, as I say, existing case Ruling MAY offer direction to your concern.

To the matter of a 'private professional'

Having regard to the Code of Practise and the Mental Capacity Act it is unlikely that there is such a thing as a 'private professional' because by submission the 'private professional' would have to apply to the Court of Protection to challenge an intended or else applied decision that effects (in this instant) The 'adult daughter/son' and may become the subject of due process in order to achieve any outcome that rules in respect of their stated application. All that on a presumption that there is a case number for an existing deputyship in place.

If not, then an application MAY be made but that would be less likely to succeed unless the 'private professional' could raise a serious concern of exploitation of a vulnerable person who MAY lack mental capacity to consent at the time of the publication or intended publication as a result of family members acting for their subject family member (usually parents), where other family members or else THE 'private professional' is concerned and where they reasonably believe that THE subject family member is being exploited by another family member, a commercial enterprise (the music industry for example) and where THE subject had/has doubtful capacity to consent.

Of course I am assuming the dial of your question. I am also simply expressing a personal opinion. Yet your question does have a sense of concern in it.

I am a parent of a Learning Disabled son and my shared experience over 35 years as a parent has given me a clear sense that legal advice is always necessary - but the instruction given to a solicitor to express a regulated opinion that will stand up to legal scrutiny is best limited to an express meaning and never narrated emotionally because that wastes both time and money.

[Hidden]

Whilst you ruminate on my first comment I post links to the CoP rulings mentioned therein. 

[2019] EWCOP 2

caselaw.nationalarchives.go...

and

[2019] EWCOP 3

caselaw.nationalarchives.go...

I enclose these two connected rulings from the Court of Protection deposited in the National Archive to remove any speculation regarding possible professional direction, seeing as you imbibed a ‘private professional’ precept in your comment.

[2019] EWCOP 2 & [2019] EWCOP 3 are connected rulings because [2019] EWCOP 3 is a promised ruling taken from the [2019] EWCOP 2 case.

It MAY be that for your purposes [2019] EWCOP 2 at 13 of the ruling gives specific direction as well, in furtherance, a sense of the complexity and detail that is required to find direction to a best interest case that, whilst unlikely to be in the dial of your own expressions in your comment, MAY outline the broad issue of use of the internet and social media where a person who lacks mental capacity is involved.

This link gives you the ability to download a pdf version for your own record.