I have a legal question about a recent Court of Protection s21A case. The court concluded the proceedings and extended the DoLS authorisation until 4 January 2027. Six days later, the local authority’s DoLS team carried out a review and removed the DoLS authorisation. There had been no material change in the person’s circumstances during those six days.
Is it lawful for a local authority to remove a DoLS authorisation in those circumstances, despite the Court of Protection having recently extended it? If so, what is the legal basis for doing so? If not, how can the decision be challenged by a family member who does not hold LPA? Does the recent AGNI judgment have any bearing on this issue?
Without knowing all the facts, might it be that the persons care arrangements would no longer be seen as amounting to confinement (deprivation of liberty) due to the recent AGNI decision handed down on June 2nd? The DHSC have done a pretty good job in explaining what to consider since the AGNI judgment UK Supreme Court 2026 judgment on what constitutes a deprivation of liberty - GOV.UK… I think this point in particular is helpful in summarising the situation since AGNI:
It should be noted that the issue of whether a person is objecting to the confinement is relevant to the question of objective deprivation of liberty. Where a person is objecting, then it follows that valid consent is unlikely to be present. If there is an absence of objection when the person is capable of objecting, then it is more likely that the person is not being confined.
Any objection would point towards a deprivation of liberty. Objection could take a number of forms and could include:
attempts to leave the setting where the arrangements take place, such as a care home, hospital or supported living
refusing care or treatment and/or physical rejection of care (for example, pushing staff away when care is being provided)
physical restraint or one-to-one care to manage behaviour
covert medication if objecting to medication
sedating medication to manage behaviour if it impacts on an individual’s ability to object
So, if none of the above would be true for the individual concerned, do you believe that the person would just no longer be seen as confined?
I don’t think the position is entirely clear, but the LA may be able to carry out a review in-line with Schedule A1 under 102(1) (see also 110 - 117). Obviously it’s far more preferable for the LA to submit evidence and have the case conclude by consent, but it sounds like the horse may have already bolted.
Thank you both for your replies. Some details may be relevant:
The CoP order extending the standard authorisation was made in the s21A proceedings after the AGNI judgment, and the authorisation was extended until January 2027.
There was no material change in circumstances in the six days before the LA removed the authorisation.
I am unclear what assessment was carried out by the LA before removal. I understand information was obtained from the care home, but I do not believe the person was directly consulted by the BIA.
The person’s objections fluctuate, so I am unsure whether the absence of consistent objection has been interpreted correctly.
Family were not consulted as part of the review.
Would these factors affect whether the LA could lawfully remove the authorisation so shortly after the Court’s order?
I am afraid i am not qualified to be able to say whether or not the actions of the LA are legally correct, but the below may help you consider whether you believe the circumstances would still indicate confinement for the person concerned:
The Supreme Court considered that when determining whether a person is deprived of liberty we would need to take into account:
the concrete situation and totality of the restrictions on the individual,
the type, duration, effects and manner of the restrictions on the person, with no single factor being determinative
Put simply – consider all restrictions imposed on the person!!!
Remember, “The difference between deprivation and restriction of liberty is one of degree or intensity”. The Supreme Court considered that to determine whether a deprivation of liberty existed, consideration should be given to “how close the[restrictions] in question is to the paradigm of deprivation of liberty, which is confinement in a prison cell” (paragraph 119).
Restrictions to look out for:
Sedation to manage behaviour (para 188) – especially if also provided covertly
Physical restraint to deliver care, manage dysregulation or protect P from harm (para 54)
Person is indicating a desire to leave and is/would be stopped (para 151 & 187)
Person is objecting to the care/placement arrangements (para 151 & 187)
Person is frequently secluded or confined to a particular area
Significant levels of supervision / control over movements / limited availability of social contacts (para 121) + Do they consider the restrictions as ‘a major intrusion in their life’ (para 136)?
187. [is objection the key?…] If an individual objects to the arrangements, this is likely to result in conflict. There may be arguments, attempts to leave a particular place, expressions of a wish to leave, or conduct showing a wish to leave. The resulting stress for the individual in having their objections overruled may lead to suffering and result in the use of physical force or physical restraint [my comment - or other restrictions listed above]. These features of the individual’s concrete situation are likely to be clear indicators that they are being confined, in the sense of suffering a deprivation of liberty. The necessary element of coercion is present because the individual is being compelled to live somewhere they do not want to live.
I should have also added this quote from the AGNI judgment “198 […] For those who are […] so profoundly disabled that they cannot conceptualise leaving let alone physically achieve this, they are not being prevented by a third party from doing something and are not being deprived of anything [my emphasis].”
Having read both your posts I think your only option is to make enquiries with the LA and possibly make a complaint depending on their response.
My observations on the very limited information you’ve given is that the Court’s decision was post AGNI, therefore I think the confinement question in your scenario is possibly a red herring. You are stating no material change, so it is unclear what triggered a part 8 review leading to an authorisation ending.
Perhaps a lawyer can advise on procedure, does the LA standard authorisation being ended automatically end the Court order extending the standard authorisation? Possibly yes?
Any part 8 review has to be triggered by one of the qualifying criteria now not being met - which criteria was it that triggered the review? The criteria that triggered it would indicate what process should have been followed, who should be involved and who should be consulted.
Potentially you have grounds to complain that the part 8 review process and subsequent decision making was of poor quality as it did not involve the necessary consultation with others interested in P’s welfare and potentially other procedural breaches e.g. involvement of BIA therefore the decision of the supervisory body is flawed.