Early post-AGNI court judgments

Law and practice Mental Capacity Act
1

Here is the link to the recent Oxfordshire County Council v P - Find Case Law - The National Archives Court of Protection case… I personally found most ‘interesting’ paragraphs 16 and 17 which is the analysis as to why the Court believes P is objectively ‘confined’:

  1. The first issue I have considered is whether P’s current or future living and support arrangements amount or would amount to a deprivation of her liberty. Factually there is little dispute about the arrangements and restrictions placed on P in her current placement or, in fact, if she were to move to live with G. Her current placement is supported living rather than a secure residential unit, but still involves locked external doors, sensors on the front door and bedroom doors, window restrictors and P is not free to leave unless accompanied by one-to-one support which she requires for all outings, appointments and journeys (B271, B273, B274). She can perform some basic tasks for herself within the placement, such as getting herself breakfast at times, and does not need waking support overnight but overall, her needs are such that she requires 35 hours of one-to-one support each week. As was submitted by Ms Fox for the OS, it is arguable that the current placement allows P some sense of relative normality because she can go on regular outings and attend local clubs. Physically the property also has an appearance of relative normality a world away from a prison facility (B87-B91 photographs of the placement). However, I agree with Ms Fox’s summation that P is, in reality, subject to ongoing supervision and unable to leave the placement without support in place. To some extent, that overall position would be little different at G’s house. Locked external doors are not uncommon in private residences at night or even during the day sometimes, and G’s evidence to me was that she accepted that P would need support to leave her home beyond going into the garden and, even then, G would check on her. Sensors are not present at G’s home as far as the evidence shows, nor are there window restrictors in place at present, though the risk assessment by the ASW in the shadow care and support plan were P to return to live with G notes that these would be required (B632). There is thus a minor qualitatively lower level of environmental restrictions potentially in place at G’s house for P.

  2. Neither placement option requires any level of chemical restraint nor physical restraint of P. However, objectively P is not free to leave either her current placement or G’s house when she chooses and would be subject to a high level of supervision in either placement as evidenced by the proposed package of support in the shadow care plan. These are factors which would point towards the conclusion that she is not able to exercise her autonomy freely in either placement and thus may be deprived of her liberty notwithstanding that both placements are further removed from the paradigm of a prison cell identified in AGNI, and thus closer to relative normality.

The judgment goes on to explain that "the main issue about deprivation of liberty [in the case] is P’s consent or lack of consent", which is explored further in the judgment.

Personally, i am most interested in the determination that the arrangements indicate confinement. What are others views on the conclusions reached? Although not having all the facts, the judgment explains that there is, no chemical restraint, no physical restraint, no objection from P, that “both placements are further removed from the paradigm of a prison cell identified in AGNI, and thus closer to relative normality.” and “Physically the property also has an appearance of relative normality a world away from a prison facility” (para 16), no evidence that P sees the restrictions as ‘a major intrusion in their life’ and that '[P] can perform some basic tasks for herself within the placement, such as getting herself breakfast at times, and does not need waking support overnight but overall, her needs are such that she requires 35 hours of one-to-one support each week […] it is arguable that the current placement allows P some sense of relative normality because she can go on regular outings and attend local clubs’. To me i can’t see how this would amount to confinement post AGNI?

Interested in others views.

2

Hi James

I have an almost identical case which was, just before AGNI, approved by the Court for CoP DoL, and has been for the last 3 years. Since AGNI I have started to consider if my person would even qualify now, as there is no objection, despite the high level of support, and at regular reviews a definite sense of being settled and content in the environment. My person does not always verbalise their feelings in relation to the placement and when they do it is often caught up in some form of delusional thoughts relating to religious content. However, I believe my person could be giving tacit consent, as their behaviours in general do not indicate any upset or objection regarding where they live and the circumstances under which they live. Apparently I don’t need to review the CoP DoL until it is due to be reviewed, but it has definitely got me thinking.

3

Hi James - I agree with your analysis. This really is confusing. I think your analysis is spot on. Is it because in paragraph 19 objection/acceptance is disputed?

4

Thanks Steve, and i suppose that may be the case but ultimately the judge decides

19… On balance, the evidence before me supports a conclusion that P has some awareness of where she is living and where she has lived, including in the past with her parents, but otherwise overall she is consistently confused about where and with whom she wants to live and her wishes and feelings are, as described by the ASW, “muddled”. I cannot therefore find that P has clearly and consistently expressed a wish to return to live with G, but I do note that this does not in any way diminish the undoubted bond between the two of them nor that G cared for P for the majority of P’s life on the evidence before me…

This would still need to be in CoP because of the dispute about what arrangements are in P’s best interests, but not every dispute between those interested in P’s welfare and those commissioning the care automatically means this points towards P being confined… If i get a chance later (meant to be a NWD :rofl: ) i may try and write something about the difference and see what others views are in relation to this.

I really hope people do not put to much wait on this judgment as it appears, even in its language, to have more in common with Cheshire West than it does with AGNI.

5

It certainly feels like we have gone back to how things were pre-Cheshire West. Back to when it was almost impossible to get a consensus opinion about whether a situation amounted to a deprivation if liberty or not. It was much easier to reach a consensus when applying the acid test. And now we know that it was actually too easy. A multi-factorial consideration provides, by definition, multiple points to disagree about. I’m not at all sure things will become clearer even as more judgments happen or more guidance is published. I hope I’m proved wrong.

6

Hi Nick - maybe i am more of an optimist :slight_smile: … I should have said that outside the above published judgment I have already heard of some consistency being found with applying the AGNI judgment in practice. This is well outlined in this article Objections (and breached conditions) after AGNI – Promoting Open Justice in the Court of Protection, where they note an apparent focus on objections being a key consideration when determining both the objective and subjective limbs - “It will be interesting to see how the apparent reliance on ‘objections’ as a key determinant of ‘deprivation of liberty’ continues to develop in this and other cases.” (see also para 189 of AGNI and Eldergill’s observations).

Objection being a key factor also seems consistent with what the DHSC stated in its ‘update’ Changes to the definition of deprivation of liberty - GOV.UK, where they state,

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.

I also remember that after Cheshire West it was months, even over a year, before people had come to a consensus on what was meant by “continuous supervision and control and lack of freedom to leave” - by way of analogy look at what 39 Essex Chambers said in their summary of the judgment (1) P v Cheshire West & Chester Council & another; (2) P & Q v Surrey County Council | 39 Essex Chambers:

Regrettably the twin concepts are not straightforward. Practitioners have been told which factors are irrelevant. But no guidance is given as to when “supervision” is not “control”; or when “supervision and control” are not “complete” or “continuous.” There is no analysis as to what it means to be “free to leave” or its inter-relationship with its twin concept. Reference is made to Munby LJ’s, “I mean leaving in the sense of removing himself permanently in order to live where and with whom he chooses… ” But that does not take us much further, particularly if there is no alternative to go to or no-one else to live with or if the person is living in their own home.

Always the optimist, I think a consensus on an interpretation of AGNI will be reached just as quickly as was found for Cheshire West… But maybe that is because i am one of the few that thinks that AGNI was the right decision (NB: ignoring the needless complexity of ‘valid consent’ :wink: which Ben Troke explains perfectly here SCIE Webinar 2026 - SCIE).

7

For a more AGNI interpretation of DoL or no DoL see the recent High Court Family Division judgment in Mustafa (a child), Re - Find Case Law - The National Archives, a helpful judgment all round, with the conclusion being:

  1. When I stand back at look at all the factors relevant to the assessment as to whether there is a deprivation of liberty, in my judgment there is no deprivation of liberty. Mustafa is, as the Guardian sets out at length, generally happy in his placement. Where the school uses physical restraint, it either has Mustafa’s consent or it is entitled to use restraint under its common law powers. Either way, there is no deprivation of liberty such as to give rise to a violation of Article 5(1). An extension of the DOLs order is therefore neither necessary nor proportionate and I refuse to grant one.
8

Most recent case, and most helpful by far in my opinion, AGNI – the most comprehensive first instance ‘run’ at it so far – Mental Capacity Law and Policy for the full judgment see Re AR (Whether restrictions amount to a deprivation of liberty) [2026] EWCOP 45 (T2)… It really unpicks both the objective and subjective elements in the context of the specific facts of the case and as explained in the above blog post:

[the judge] was at pains to emphasise, consideration of deprivation of liberty is both multi-factorial and case-specific. This means that it is not possible (nor, indeed would it be legally correct: see this video) to take the outcome of this case and transpose it, without more, to other situations which might appear similar. It is therefore extremely useful as a judgment which helps providers and supervisory bodies get themselves into the AGNI zone; it is, however, not a shortcut to thinking about whether a particular situation gives rise to deprivation of liberty;

What i found most helpful in the judgment, and explained in the blog was,

It is of no little importance that HHJ Burrows adopted the staged approach of considering the objective limb first: there seems in some quarters to be a tendency to rush first to considering ‘valid consent’ issues without actually asking the rather important question of ‘consent to what’?

My simplistic interpretation of this is, if there is no identifiable confinement (the objective element), and this has been well evidenced, as the judge does in the above case, then the subjective question of ‘valid consent’ completely falls away and would not need to be considered.

In addition, as one of the cases mentioned above related to DoL post AGNI and under 18s, see this very helpful guidance in this area - Deprivation of liberty and children and young people after AGNI - Nuffield Family Justice Observatory.

9

Not sure if me adding these cases is helpful to anyone else on the forum (maybe just me :wink: ), but here is another case, SM, In the Matter Of [2026] EWCOP 46 (T2) (03 September 2026), with a very helpful summary here Court of Protection judge finds no deprivation of liberty in case post AGNI… The article summarises the conclusion of the judge as:

HHJ Sue Williscroft concluded that, objectively, SM is not deprived of her liberty.

The judge said: “The ALR [Accredited Legal Representative] and Local Authority agree that SM is not providing valid consent. SM has informed her legal representatives, and myself during a judicial visit, that she does not want to remain in the current placement, that she only wants 1:1 support when going out, that she would like to live with other people and that she does not want to be ‘in care’. […] Her inability to give a reason to move somewhere else is in my view not an expression of permanent preference since the variety of elsewhere she mentions is so variable and this is in response to direct questions about it. Overall, however, both the local authority and ALR accept she is/has not given valid consent and I accept that subjectively there is no evidence she has.”

She continued: “The arrangements do not accord with SM’s wishes as she would like to live in an (unavailable) different place, but in reality it would appear she welcomes the support she has.

“The ALR argued the starting point is that SM’s views are decisive: they can transform the arrangements for her residence and care into a deprivation of liberty, even if the same conclusion might not be reached for someone in the exact same situation. I cannot accept that is the law or reality since it suggests wishes can change the real lived experience into something different.

“Looking at the whole situation, I note her views as expressed from time to time but also her experience of life, of what I conclude is her home rather than a place of confinement in my assessment.”

10

Thanks for sharing James - I appreciate it and I am sure others do too.
I am particularly struck by the line

If she lived at home with her mother, who could not manage this now, she would have the same living situation; encouragement about sleeping and eating, help and advice, calming etc. More professionals achieve that now but do so in an environment that is her home.

11

Glad it is helpful Steve… That quote you have highlighted reminded me of something similar the judge expressed in the ‘AR’ case mentioned further above:

Relevance of the protective rather than punitive character of restrictions

  1. The Court held that this is plainly relevant. A major criticism of Cheshire West was that it failed to distinguish between restrictions imposed to punish, to incapacitate or to coerce, on the one hand and those imposed to protect, to care for, and to provide treatment. The Supreme Court repeated that “the purpose of the measure was, therefore, a significant factor” (para 131), and also “The continuous supervision and control to which she was subject were directed to meeting her care needs rather than to making her a prisoner.” (para 204).
  2. In discussing Austin and Munjaz, the Court repeatedly emphasised that protective measures are further removed from the paradigm of imprisonment. This does not mean benevolent intentions automatically prevent a finding of deprivation of liberty, however. The Court expressly recognised that “even measures intended for the protection of or taken in the interest of the person concerned may be capable of being regarded as a deprivation of liberty.” (para 128). However, the protective nature of the measures remains a relevant and potentially weighty factor.

Then at para 49:

[…] Purpose matters. Protective and therapeutic restrictions are relevant and distinguishable from punitive confinement.

With the conclusion being:

  1. In the present case the restrictions are imposed solely for the purposes of care, welfare and protection. There is no punitive element. There is no element of discipline. There is no element of social control in the ordinary sense.

For me the interesting question for any of us considering this on the ground is what are the indicators/factors that will take the "Protective and therapeutic" to the “punitive confinement”?

12

I am hoping that the updated DHSC guidance will provide some kind of spectrum covering the therapeutic to punitive range - this is what a lot of people I feel are struggling with.
Its likely an impossible task

13

I have been trying to think this through Steve for my own learning, I have added my reflections below, I am not saying they are right (they probably aren’t!), but I am very interested in people’s views - I try to argue that the lived/subjective experience of the person will likely be the key factor for thinking this through on the ground:

Protective and therapeutic restrictions [a] - are relevant and distinguishable from punitive confinement / punishment [b]: How to spot the difference

It can be a challenge to conceptualise the difference between ‘protective and therapeutic restrictions’ [a] for a person AND restrictions and arrangements which become ‘punitive confinement’ / punishment [b], and when or whether [a] crosses over into [b]? One of the main challenges conceptually is a care giver or care provider would never describe the care they provide, in a person’s best interests, as punitive or punishment based, they would always see it as protective and therapeutic even if restrictions were required to meet a persons need or keep them safe from harm.

So, when does [a] become [b] or can [a] never become [b] or is it about P’s experience of [a] that would make [a] become [b]? The Supreme Court decision does at times refer to this conundrum, at one time saying, “The difference between deprivation and restriction of liberty is one of degree or intensity and not one of nature or substance” (para 186).

But this only takes us so far in our understanding, for the purposes of thinking this through on the ground.

Maybe the easiest way to consider this on the ground is to:

  • start by asking the person - “what are your views on the restrictions we have put in place to keep you safe?” (NB: It would be important to outline these restrictions to the person, including their purpose, if you were discussing this with them).
  • then ask yourself, the care provider, the care staff or anyone else interested in the persons welfare - “what is P’s experience of these protective and therapeutic restrictions?”.

If the person considers or experiences the restrictions in the negative, meaning they consider the arrangements punitive, so like a ‘punishment’ or coercive i.e. if I don’t comply, [x] will happen. Then this moves what would typically be considered protective and therapeutic restrictions [a], that may only indicate a restriction on a person’s liberty, to ‘punitive confinement’ / punishment [b], indicating a potential deprivation of liberty for that person based on their experience.

Perhaps the crux of this issue, for the purposes of the multifactorial test for confinement, is explained in the AGNI judgment here:

“136 (iv) The nature and degree of the actual restrictions imposed on or experienced by the individual […] the subjective experience of the individual affected is relevant. If they do not experience a restriction as a major intrusion in their life, that tends to indicate a classification as a restriction on liberty of movement rather than as a deprivation of liberty”.

The reverse of the final sentence being, “If the person experiences a restriction as a major intrusion in their life, that tends to indicate a classification as a deprivation of liberty rather than a restriction of liberty”.

So, if a person believes they are confined, or their subjective experience leads us to believe they consider themselves confined, they should be treated as confined, even if the intention of the restrictions is ‘protective and therapeutic’ and not punitive or for punishment.

I really like what Lucy Series says in her book (Bristol University Press | Deprivation of Liberty in the Shadows of the Institution, By Lucy Series, which is FREE to access):

These cases indicate a serious problem with judicial engagement with the subjective experiences of adults considered ‘incapacitated’ within the deprivation of liberty jurisdiction. HL’s case demonstrates there is considerable scope for professionals and carers to disagree about whether a person is distressed by their circumstances. MEG’s case shows that judges and others can exploit ambiguity over a person’s wishes and feelings to arrive at the interpretation that suits their argument. C and Mrs KK’s cases tell us that even judges whose cases are celebrated for their close and careful engagement with the wishes and feelings of the person (Series, 2016) can put aside a person’s clear objections and conclude they are not deprived of their liberty. If neither MEG, C nor Mrs KK could meet Wilson LJ’s threshold for ‘objections’ then it is extremely difficult to see how a disabled person who did not communicate verbally, or a polite, institutionalized, sedated or simply overawed person, could trigger the machinery of article 5 to attract scrutiny or challenge of their predicament.

As such, the subjective experience of the individual will likely be key for thinking this through in practice.

14

And another one - BM (Deprivation of Liberty) Re [2026] EWCOP 48 (T2) (02 October 2026), BM is aged 16 at the time of the judgment. With the conclusion being (I personally quite like the clear analysis here):

Evaluation and decision: objective element

  1. Weighing all the evidence together, and considering BM’s situation as a whole, I have concluded that the arrangements do not amount to a deprivation of liberty for the purposes of Article 5. I acknowledge that this is a finely balanced case. The restrictions are extensive. Their intensity would, prior to the decision in NI, have resulted in a finding of deprivation of liberty. However, the current exercise is not a mechanistic one. The restrictions must be understood in the context of BM’s disabilities, the purpose they serve, the life they enable him to live, the relative normality of the arrangements for somebody with his needs and, importantly, his own experience of them.
  2. I have already referred to the significant restrictions that exist. They include 3:1 staffing, continuous supervision, restrictions on his ability to leave independently, environmental controls and the possibility of restraint. Those are all matters which weigh in favour of a finding of deprivation of liberty. I also accept the force of the ALR’s submission that BM is not living the life of an ordinary teenager. He is not in formal education. He has very limited peer interaction and aspects of his life are substantially controlled by others.
  3. However, those features cannot be viewed in isolation. Similar levels of supervision were required within the family home before his removal into care. They would have to be present wherever BM lives. The restrictions serve a protective and enabling purpose. They are not punitive. They permit BM to live in an environment which he experiences as safe, predictable and supportive. His placement bears little resemblance to detention in any ordinary sense. Unlike ST, BM does not experience the arrangements as oppressive. Viewed as a whole, they are more accurately characterised as an intensive and highly individualised package of disability support than as confinement. Accordingly, I conclude that BM is not deprived of his liberty.

Could BM have given valid consent?

  1. It is therefore unnecessary for me strictly to determine the issue of valid consent. However, because the issue was fully argued before me, I shall record my view. Had it been necessary to determine the point, I would not have found that valid consent had been established. In my judgment consent must retain some meaningful content. It cannot be reduced merely to contentment or compliance. I accept that a person may lack capacity under the MCA whilst nevertheless possessing sufficient practical understanding of their circumstances to consent for Article 5 purposes, as demonstrated by Mustafa.
  2. However, I also accept the cautionary approach adopted in Oxfordshire where genuine uncertainty exists regarding whether apparent acceptance truly amounts to consent. In my judgment BM’s evidence demonstrates contentment, attachment, trust and acceptance of his lived experience. It does not demonstrate sufficient appreciation of the restrictions themselves or of the arrangements under which he lives. In that respect I regard his circumstances as closer to Oxfordshire than Mustafa. Accordingly, had I concluded that the objective element of confinement was established, I would not have found valid consent proved. However, because I have concluded that the arrangements do not objectively amount to a deprivation of liberty, that issue does not affect the outcome of the application.

Will BM’s rights be protected?

  1. Having made that decision, there is one other issue I need to consider, namely BM’s Article 8 rights. I am satisfied that BM’s Article 8 rights are protected. He is a child subject to a care order. He has a social worker. There are regular meetings at the Local Authority to discuss, evaluate and modify his care plan. The Independent Reviewing Officer (IRO) remains involved in his case. In addition, he will continue to receive support under the statutory leaving-care framework. There is therefore no need for this Court to put in place any scheme of directions for the matter to be brought back before it.
15

And another case… This i would suggest is an important read as it is about what protections there may be for people no longer in the scope of Article 5, as is the case for PK and MK.

PK & MK (Article 8 protections), Re [2026] EWCOP 52 (T2) (08 October 2026)

Key passages:

Article 5:

Deprivation of liberty

  1. The Local Authority and the Official Solicitor in respect of both sisters state that they are both not deprived of their liberty in accordance with the Northern Ireland case. I agree. There is no doubt that the setting in which PK and MK live is some way from the paradigm place of detention identified by the Supreme Court. It is a place in which both young women are as at home as could be possible for people with their needs and disabilities. They are able to personalise the placement. They are able to enjoy contact with their family there. The purpose of the restrictions upon them is entirely to enable them to receive care in a safe manner. It is a “relatively normal” setting for young women with their level of need. They appear not to object. Clearly there are challenging behaviours at times, but there is no way those are or could be interpreted as objections to their concrete situation or the physical environment of the placement itself. Above all, perhaps, they have each other. They are in the most profound biological and psychological sense each other’s closest relative. They appear to enjoy living together and have a unique bond as twins.

But what protections would there be for individuals like PK and MK who are no longer in the scope of Article 5 (NB: spoiler alert - its a Care Act advocate)? I have kept in the hole final sections of the judgment exploring this as it is the first case to have done so since AGNI, so apologies for its length.

What, if anything, can and should the Court do?

  1. Consequently, it is submitted to me that this Court has to be careful when dealing with final orders in cases such as these to ensure that the rights of very vulnerable people such as these twins are assured without imposing too many onerous requirements on them, their family, professionals and local authorities.
  2. The Official Solicitor’s two incarnations in this case have provided me with two subtly different positions.
  3. Ms Pudney for PK argues that her client’s Article 8 protections are particularly significant because although she is subjected to considerable restrictions, her Article 5 protections have fallen away. Consequently, she submits, it is “essential” for an advocate to be appointed for her and to remain in contact with her periodically to review the effect of the measures upon her and her tacit consent to them. Article 8, she argues, requires continuing scrutiny and protection of her rights but that protection may be provided by the appointment of an advocate.
  4. Ms Kelly for MK is more perhaps more ambitious. She places greater emphasis on the need for independent scrutiny of the continuing restrictions now that Article 5 has fallen away. Once Article 5 is no longer engaged, there remains a risk that significant restrictions on private life will continue without sufficient independent scrutiny. Article 8 therefore requires a mechanism capable of reviewing the continuing necessity and proportionality of those restrictions. The court should be slow simply to withdraw from the case without being satisfied that such a mechanism exists.
  5. The questions I need to answer then are these:

(1) Where Article 5 is not engaged, Article 8 is and the proceedings are at an end, because there is no further decision for the Court of Protection to make, should it look to ensure that P’s rights continue to be protected through the Court process?

(2) If so, is that the approach the Court needs to take in this case, or are there other methods by which PK and MK’s Article 8 rights are protected?

(3) What should the Court do?

  1. In cases such as these, the Court of Protection has two roles. The first is to make decisions where there is a dispute between parties as to issues such as whether P lacks capacity in relation to a certain decision, and, where P does, and there are disputes as to what is in P’s best interests, to make determinations on those issues. The second is where Article 5 is engaged, to ensure that P’s detention is lawful. That includes, unless Schedule A1 applies, ensuring that P’s detention is subject to periodic reviews usually by making provision in the final order for a review period, and the bringing of the case back before the Court just before the expiry of that period.
  2. With the Cheshire West “acid-test”, a large number of cases involving no dispute at all over capacity or best interests came before the Court because of the operation of Article 5. They involved assessments and tests being carried out, evidence gathered, statements drafted, professionals focusing on litigation rather than on their other duties, P becoming a party to proceedings, P’s family becoming involved in proceedings, and lawyers instructed. The Court had to be involved. Sometimes there were hearings. Paper procedures were devised that meant some cases could be heard by judges, without a hearing, on the fast-track. All that was required by Article 5, at least that was how the State saw it in England and Wales.

Non-Article 5 protections

  1. Unlike Article 5, Article 8 does not explicitly require the involvement of a Court. However, Article 8 issues arise on a very frequent basis within the health and social care sector. The approach taken by the Government in seeking to ensure Article 8 rights are protected has been through a series of legislative provisions, mainly the Children Act 1989 (and related legislation), the Mental Capacity Act 2005, and Care Act 2014.
  2. The Care Act 2014 provides a substantial framework of protection for vulnerable adults, and particularly for those who lack capacity to make relevant decisions. The scheme is founded on the promotion of wellbeing under s.1, including personal dignity, protection from abuse and neglect, control over day-to-day life, participation in community life, and domestic, family and personal relationships. It requires the involvement of the person concerned and those interested in their welfare in assessment and care planning (ss.9 and 25), mandates continuing review of care and support plans (s.27), provides for independent advocacy where individuals would otherwise experience substantial difficulty participating (s.67), and imposes safeguarding duties where abuse or neglect is suspected (s.42).
  3. In TDB v London Borough of Haringey [2026] EWCA Civ 1184 (which was handed down as I wrote this judgment), the Court of Appeal emphasised that the Care Act and the Mental Capacity Act 2005 operate together in securing the rights and wellbeing of vulnerable adults, and that issues of capacity, participation, autonomy and the minimisation of restrictions are integral to lawful assessment and care planning. The Court stressed that local authorities must have a clear understanding of an individual’s capacity where relevant to the assessment of needs, and that the statutory framework is directed towards ensuring practical and effective protection of the individual’s rights, wishes, welfare and participation in decision-making.
  4. In TDB, Baker, L.J. considered that wellbeing under s. 1 of the Care Act 2014 cannot properly be assessed without specifically linking P’s control over day-to-day life, participation in decision making, family relationships and restrictions on freedom. It is by that mechanism that the rights of vulnerable people are protected under the domestic legislative scheme in England and Wales.
  5. Ms Kelly’s submission is that there needs to be an independent safeguard and that cannot be achieved where the State (in the guise of the Local Authority) which imposes and operates the restrictions on P and is also the sole judge of their continuing proportionality. This is the principle enunciated in Nikolyan v Armenia (Application no. 74438/14, 3rd October 2019).
  6. Much as I hesitate to reject Ms Kelly’s submissions on anything related to the Care Act 2014, in so far as she argues for there to be an independent agent involved other than the State, I do reject what she submits.
  7. In Nikolyan v Armenia, the ECtHR found a violation of Article 8 where a man had been wholly deprived of legal capacity under a rigid statutory scheme that provided only a binary choice between full capacity and complete incapacity. The Court criticised the absence of any tailored or intermediate measures, the failure to analyse the degree of the applicant’s impairment in sufficient detail, reliance upon an outdated psychiatric assessment, and the lack of adequate mechanisms for review and safeguarding against conflicts of interest. The Court emphasised that measures affecting legal capacity and personal autonomy must be proportionate, individualised, supported by effective safeguards, and subject to regular review by a competent authority.
  8. In my judgment, however, the relevance of that case to PK and MK is limited. Unlike the position in Armenia, these proceedings do not concern the wholesale removal of legal capacity, nor a statutory regime lacking review mechanisms or safeguards. Rather, PK and MK are protected by the integrated framework of the MCA and the Care Act 2014, including duties of wellbeing, participation, care planning, review, safeguarding and independent advocacy. To that extent, the concerns identified in Nikolyan are largely addressed by the domestic statutory protections available to them.
  9. That being said, in TDB, Baker, LJ focused on the need for independent safeguards within the operation of the Care Act. He refers to s. 67 of the Act and the Statutory Guidance (at [43]) which emphasises the need for a Care Act Advocate where there is no suitable family member. He was also concerned by issues of good practice at the coal face amongst professionals. Those concerns related to capacity assessments and are very unlikely ever to be relevant to this case, where incapacity of a profound degree will be permanent.

Discussion and conclusion

  1. In my judgment, the provisions of the Care Act and the MCA are adequate protections in this case. The situation will likely be different in other cases. In AR, for instance, there was an issue, present at the time of the final hearing that concerned the Court, namely the position of AR’s parents towards those managing his welfare and their (the parents’) role in his life. The LA there ensured there would be an independent advocate at least for the first year. That may continue. But that is a matter for the Care Act jurisdiction, it seems, and not this Court.
  2. In this case, there is no doubt that the provisions of the Care Act and MCA apply. It seems to me a Care Advocate will be needed in this case if their mother either does not wish to perform that role, is unsuitable to do so, or (and this seems unlikely) where PK and/or MK do not wish her to perform that role.
  3. As I understand it MK has a Care Act advocate. In PK’s case it is less clear. Both need one, it seems to me. I directed that the LA clarify this by no later than 4 p.m. on 2nd October 2026.
  4. At the time I completed my draft judgment, I was not persuaded that a further review hearing was required. However, before reaching a final determination on that question, I wished to be satisfied that the practical and effective safeguards upon which I rely are actually in place.
  5. I therefore said this. The existence of an independent advocate may be of significance. As the Court of Appeal emphasised in TDB v London Borough of Haringey [2026] EWCA Civ 1184, participation, support and independent advocacy form important components of the statutory protection afforded to vulnerable adults under the Care Act 2014. Whilst I do not accept that Article 8 invariably requires independent review by the Court, the absence of independent advocacy may, depending on the circumstances, weaken the practical protection otherwise available. I therefore required clarification of the advocacy arrangements before deciding whether the existing framework provided sufficiently effective safeguards for the Article 8 rights of PK and MK.
  6. When the draft was returned with corrections and clarification requested the Local Authority confirmed that both young women had been referred to Care Act advocacy. At my request, it was agreed that the Local Authority should refer the matter back to the Court in the event that no such advocacy was to materialise.
  7. I am content with that outcome. These proceedings can come to an end.
  8. That is the judgment.
16

And a very helpful summary of the above case is Article 8 protections after AGNI – Mental Capacity Law and Policy, with incredibly helpful reflections on the use of advocacy in these circumstances, with the key comment being:

“As desirable as it would be, I have serious doubts as to whether there is the power to appoint a Care Act advocate simply on a ‘rights protection’ basis. The duties to appoint an advocate under s.67 are limited to specific situations which are not obviously those covered by those envisaged by HHJ Burrows in this case; whilst it is possible to appoint an advocate to meet care and support needs (see s.8(1)(a) Care Act), there will be hoops to jump through to explain how ‘rights protection’ satisfies the statutory eligibility criteria”.