In an age where access to the internet and social media dominates our lives, a question which often arises in cases involving those who have sustained a catastrophic brain injury is the extent to which they are able to make decisions to use these platforms.

Guidance can be taken from the recent decision of the Court of Protection in TW (by his litigation friend, the official solicitor) and Middlesborough Council (18 July 2023).

Here, neuropsychological testing demonstrated TW’s resourcefulness in relation to executive functioning but difficulties with deploying problem solving skills in real life.

For example, TW rejected the provision of high quality support from professionals he gets on with and who like and understand him when they prevented him from going online unsupervised. He was unable to understand no support worker will allow this and wrongly believed if he shopped around long enough, unfettered access would be restored.

Despite completing internet safety training, TW was unable to appreciate and weigh up the consequences of accessing the online content he wished to review, hence restrictions on use requiring supervision when using a computer were authorised via a deprivation of liberty order.

In response TW’s challenge, the Court of Protection was satisfied on the balance of probabilities he lacked capacity to decide what use to make of the internet and social media by reason of an impairment in the functioning of his brain which renders him unable to understand why accessing the content he wishes to view is wrong, the potential criminal consequences for him and the harm caused indirectly to wider society when he is unrestricted or unsupervised when using a computer.

This case serves as a useful reminder a formal diagnosis of a brain injury alone is not sufficient to find a person lacks capacity. Of importance is an analysis of the range of factors arising from that injury which may impair functioning and create a causal nexus with the inability to make a decision.

It also illustrates the importance of using tools, such as the provision of training and supervision to try and enable people who would otherwise lack capacity to make their own decisions.

Gemma Quinn is Senior Associate in Clyde & Co's catastrophic injury and large loss team.