Ah 
- I get where you are coming from Steve (the problem with forum chat rather than face-to-face), and now completely understand your comments 
… It’s probably because I am from the ‘traditional’ adult social care background that made my head go automatically that specific way, but in the MH context I absolutely agree! I also think that this is the one of the few areas where the DHSC could definitely flesh out its guidance… In relation to that I have had some interesting messages coming from BIAs who have attended training since AGNI, for example, if P is in a MH hospital, and P is objecting, then the ONLY recourse since AGNI is MHA and DoLS shouldn’t be used… I made clear that i wasn’t qualified to comment on that but interested in others views on the forum - that didn’t feel correct to me but i do have a limited understanding of MHA/DoLS in MH settings.
Hmm- a gilded cage is still a cage? But, post AGNI, there aren’t so many cages and, even where there is one, then it vanishes if you like the gilding.
For posterity, another case but this time anticipating a potential DoL post-operatively Barts Health NHS Trust v CG [2026] EWCOP 55 (T3) (16 October 2026)… Whilst it is determined that treatment is in CG’s best interests an important point to note, in relation to the relevant passages pertaining to DoL below is:
-
A further risk in this case arises from CG’s opposition to treatment and the possibility that restraint or chemical sedation may be required. Those matters are addressed within the treatment plan.
And then when considering the question of DoL:
- Turning to the care plan and the implementation of restraint both pre-operatively and post-operatively, I have carefully considered the plan. It includes measures which are likely to be a deprivation of liberty, although that will depend upon the level of resistance shown by CG. The plan takes great care to identify all of the steps that should be taken in relation to the procedure. If those steps are unsuccessful, it may be necessary for him to be sedated before being taken to theatre.
- The post-operative period is the stage at which restraint and deprivation of liberty are most likely to arise. The treatment plan refers to matters including nasal packing, the use of a catheter and venous and arterial access and the importance of maintaining these. It is anticipated that CG will remain in the intensive care unit for approximately five to seven days for intensive clinical monitoring. This is a specialist setting and the clinicians there are experienced in managing situations involving restraint, if required.
- I am satisfied that it is in Cg’s best interests for the court to approve this care and treatment plan and to authorise any deprivation of liberty that is required. I am sure that the Trust will do everything it can to minimise any restrictions, and restraint is only to be used where necessary and proportionate in the particular circumstances arising.
Really helpful worked example (highly recommended read for BIAs, s12 Dr’s and DoLS Signatories) - NHS Leicester, Leicestershire and Rutland ICB v AA & Ors [2026] EWCOP 56 (T1) (15 October 2026) and a great summary here - What does normality look like for the person? A cautionary AGNI tale – Mental Capacity Law and Policy, with the conclusion in the case being:
Conclusion
- Drawing all of the above together, and balancing all the matters set out above, I do consider that AA is objectively confined. Whilst there is no hierarchy of factors, in AA’s case, the factors that I find weigh heavily in reaching this view, are the degree of control exercised over all aspects of his day to day life, his lack of participation in ordinary activities, including activities that were previously normal for him, and would be relatively normal for other young people in his position, the restrictions in place on contact and family life, and the regular use of behaviour suppressing medication. In terms of AA’s wishes and feelings, as set out above, there is a mixed picture and I am left with serious doubt as whether AA is genuinely content or whether he objects to some or all of the arrangements. I therefore do find that there is an objective deprivation of liberty, and I am satisfied that AA is not able to provide valid consent for the same.
- People who lack capacity are inherently vulnerable and amongst them, those who are unable to speak, are the most vulnerable of all. Whilst I recognise that the determination the court must ultimately make is a binary one, it is important, in my view, to acknowledge those cases where there is genuine uncertainty, and it is appropriate to err on the side of caution.
- I will therefore make an order authorising the deprivation of liberty that arises from AA’s care arrangements. I note there is no dispute as to whether the arrangements in AA’s care plan are in his best interests. In the lead up to the expiry of the authorisation, there will be a review, outside of the court framework, as to whether AA’s care arrangements still give rise to a deprivation of his liberty. By that point, there may be different considerations which apply (in terms of AA’s behaviour, his medication regime, developments in his contact and community access); those are issues that will need to be considered, however, at the time.
- I would like to stress, for the benefit of the family, that nothing I have said above is a value judgment on the arrangements; it is a description of the overall arrangements, as I find them to be. I am satisfied that the care plan in place is in AA’s best interests and that everybody is working hard to improve life on the ground for him.
NB: I will start limiting my posts on the ‘early post AGNI judgments’ and providing a list of further judgments on a 2-weekly basis until Christmas by which point I imagine that we will have a relatively clear steer on how the Courts are applying AGNI on the ground… I will add other judgments and summaries of judgments to the forum after this date if they appear to add something new for those applying AGNI on the frontline - but i will post these on separate posts. I do hope these posts remain helpful for some of you on the forum.
ZZ (Deprivation of Liberty in the Public Interest) (No. 2) [2026] EWCOP 57 (T2) (29 October 2026)
I found this case v.helpful for its conciseness and for the fact it is looking at restrictions which are imposed on the person (ZZ), in their best interests, which are, in the main, for the protection of others. It is also helpful for its analysis as to the overlap of the objective and subjective elements of DoL.
Key sections being:
Pertinent background:
ZZ is a 20 year old man with a diagnosis of mild learning disability (‘LD’), attention deficit hyperactivity disorder (‘ADHD’) and possible obsessive compulsive disorder (‘OCD’). He suffered sexual abuse as a child and has himself been convicted of sexual assault on a 5 year old family member, resulting in an Intensive Referral Order for 12 months and a Sexual Harm Prevention Order (‘SHPO’), which expires in October 2024. It is a condition of the SHPO that ZZ does not live or sleep in any premises where there is also a child under the age of 18 years unless approved by the local authority and does not have unsupervised contact with a child.
And most presently:
ZZ’s risky and impulsive behaviour is increasingly difficult to anticipate and manage. ZZ’s multi-disciplinary team continue to meet regularly and the minutes report heightened concern about ZZ’s anxiety, impulsivity, fixations, comments and deviant behaviour. Mr O’Brien submits this provides further evidence of the connection identified by Dr Rippon between ZZ’s complex conditions and his obsessive behaviour, with the result that there is a collective concern that ZZ is at high risk of reoffending sexually due to the anxiety and stress which he is experiencing. Ms Roper submits the court should disregard this evidence in this hearing, which is an appeal against the order on 1 August 2023 on the basis of the evidence available to the court at that time. I agree with Ms Roper. For the purposes of this appeal hearing I have not taken into account the recent updating information.
Turning to the care and support ZZ recieves:
PRESENT ARRANGEMENTS
- ZZ now resides in a supported living placement where he receives 24-hour support. He occupies a property under a tenancy held in his own name. The arrangements are intended both to meet his assessed needs and to manage risks identified by professionals.
- The current care plan provides for extensive restrictions. ZZ does not possess a key to his home. His movements in the community are supervised. His communications and relationships are subject to oversight and control. His access to technology and social media is restricted. His electronic devices are removed overnight. Various safeguards are in place concerning his contact with others and his activities in the community.
When deciding whether the arrangements amounted to confinement:
- […] I am satisfied that the arrangements imposed upon ZZ are highly restrictive. Almost every aspect his life is regulated and controlled. There is supervision of his movements, his communications are monitored, his relationships with others are controlled. He is severely restricted in his use of technology. In short, he is unable to exercise the degree of personal autonomy that an ordinary adult in the community would normally enjoy.
- I do not consider these arrangements can properly be characterised as falling within the sphere of relative normality. Whilst regard must be had to ZZ’s individual circumstances and needs, a substantial proportion of the restrictions are imposed because of the risk he presents to others and the need to protect the public. Their purpose is not solely to provide care and support. In that respect the present case bears a close resemblance to Y County Council v ZZ[1] [2013] EWCOP 463, in which Moor J recognised the relevance of restrictions imposed for the protection of others when considering whether a deprivation of liberty arose.
And in relation to consent to the confinement and how the objective and subjective elements overlap (I found this analysis most helpful, especially para 19 and 22):
- I accept that ZZ frequently presents as cooperative and that he has engaged positively with professionals involved in his care. He has achieved significant progress. Certain restrictions have been reduced over time, and he has expressed approval at some aspects of the current placement.
- However, the evidence demonstrates that ZZ wishes to enjoy substantially greater autonomy than is presently available to him. He wishes to possess his own key and to enjoy greater freedom in his relationships, communications and daily life. What he ultimately wants, not surprisingly, is to live a more normal and independent existence. His compliance with the current arrangements reflect an acceptance of present reality rather than genuine agreement with the restrictions themselves.
- Whilst the objective and subjective elements of deprivation of liberty overlap, it is still appropriate to deal with them separately, provided that one does not lose sight of that overlap, which I do not.
- When dealing with the objective element of deprivation of liberty, I have to consider how the restrictions imposed upon ZZ are experienced by him. In other recent cases much has turned on this since the NI case now requires the Court to focus on how P experiences the circumstances in which they are placed. There has been a number of Tier 2 judgments and one very recent exceptionally clear Tier 1 judgment (NHS Leicester, Leicestershire & Rutland ICB v AA (& others) [2026] EWCOP 56 (T1) (TJ Sharron) in which this is addressed. At the present time, there is also a judgment from Mrs Justice Theis, in Essex County Council v ST [2026] EWHC 2328 (Fam).
- The only Tier 2 judgment I will mention is that of His Honour Judge Tindal in TW v Worcestershire County Council [2026] EWCOP 54 (T2). At [55] when the Judge summarises his approach to the objective element he says this: “In short, if someone actively objects to their placement - particularly if that leads to conflict and unhappiness, or even potentially physical restraint - there is clearly an element of coercion as they are being compelled to live somewhere they did not want to live, which points towards ‘confinement’. By contrast, if someone is actively happy in their placement, that would not only point towards ‘valid consent’, it would also point against their being ‘confined’ at all because they would not experience any element of coercion. So, in MIG, MEG and Mustafa, it was their broad (if not unqualified) acceptance of their respective placements which underpinned their protective and caring purpose, ‘relative normality’ and lack of coercion, so they were not ‘confinements’ in the first place, even aside from the evident ‘valid consent’ to them. Likewise, in the more borderline case of AR, the absence of objection could not constitute AR’s valid consent to the placement, but it weighed against his ‘confinement’. In SM, objection was occasional and changeable, so could not itself change a placement that was not a deprivation of liberty into one that was. By contrast, in RF, clear and consistent objection pointed strongly towards ‘confinement’. So, clear and consistent objection is not determinative but a significant factor: generally and in this case”.
- ZZ falls somewhere between the different categories in Judge Tindal’s classification. ZZ is in a position where life outside an institutional environment is a welcome one. It is clear he would rather be where he is than someone more restricted. This is also the situation in cases concerning those who are discharged from detention under the Mental Health Act 1983 (MHA), including those who are restricted patients placed on conditional discharges. They accept the new restrictions; but what option do they have? ZZ is in the same position. He knows that he is better off where he is than in a more restricted environment, and for that he is grateful. However, it is clear he would rather have greater freedom. For that reason, his position is closer to that of mere acquiescence rather than actual agreement.
- For all those reasons I am quite sure he is objectively deprived of his liberty.
- Moving on to the subjective element. Compliance, acquiescence and resignation should not be confused with consent. Even if ZZ possesses the ability to provide valid consent to these arrangements, for the reasons outlined above, I am not satisfied that he does in fact do so. Rather, he accepts the arrangements because he recognises that they presently exist and because he sees no alternative. That is not the same as giving genuine consent to them. The subjective element identified in NI is therefore established.
- Looking at the matter in the round, I am satisfied that both the objective and subjective elements required by Article 5 ECHR are present. The restrictions are extensive and pervasive. They are maintained in significant part because of the risk ZZ presents to others. They substantially curtail his autonomy and freedom of action. They do not fall within the sphere of relative normality. Furthermore, I am not satisfied that ZZ validly consents to them.
In relation to the above - see Deprivation of liberty and public protection post-AGNI – Mental Capacity Law and Policy for which the article also recommends reading - When is a deprivation of liberty not a deprivation of liberty? The Mental Health Act 2025 and conditional discharge – Mental Capacity Law and Policy.
Re Children / DoL and AGNI see AGNI and children – the National DoL Lead Judge pronounces – Mental Capacity Law and Policy
There is now no need for me to keep a running list of post-AGNI cases as the amazing Neil Allen from 39 Essex Chambers has created the Deprivation of liberty after AGNI: case tracker… Which even has a “Cases that set precedent carry a Precedent badge” function, which is a really nice touch for understanding which decision carry real weight/authority behind them.
I hope the posts were helpful but I think this will be the last update on this thread.
Thanks James - your posts have been great; really helpful.