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.