RoL in the absence of DoL (and the safegaurds)

Law and practice Mental Capacity Act
1

Apologies if this is slightly off-topic, but increasingly I see AGNI as presenting opportunities as well as risks. That was not my initial reaction. My first concern was reduction safeguards for some of the most vulnerable people, and I am still encountering what appear to be potential misunderstandings of the judgment, such as the suggestion that constant supervision is no longer restrictive if the person appears content with their situation. On a more optimistic note, I can see the potential to go beyond Article 5 and consider a much wider spectrum of rights. At it’s best I would love to see AGNI leading to better Care Act reviews and assessments due to inability to farm out core MCA requirements.

I’m looking for accessible resources that clearly explain:

  1. That subjective consent in AGNI is relevant to the Article 5 analysis and does not automatically determine questions arising under other Convention rights, such as Article 8; and

  2. That AGNI did not remove the possibility that constant supervision and control may still amount to a restriction requiring legal justification.

Equally, if either of those propositions is incorrect, I would be very grateful to be corrected.

By way of context, my work involves analysing residential and supported living costs and improving understanding of the respective responsibilities and accountability of providers and commissioners/funders. I am currently developing a community event for Adult Social Care commissioners, social workers and brokerage teams on restrictions of liberty in the post AGNI landscape.

The aim is not to explore complex points of law, but to reinforce a few core messages:

  • The Mental Capacity Act must still be complied with.
  • Providers remain responsible for ensuring that restrictions are lawful.
  • Commissioners and funders should also be willing to challenge practices that may no longer be necessary, proportionate, or lawful.

For example, where an individual has not self-harmed for many years, but a provider is unwilling to engage in any discussion about reducing long-standing restrictions.

I hope that provides some context for my request, and I would be grateful for any guidance.

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Hi Ruth

Personally I think the SCIE Webinar (and Ben Troke’s AGNI explainer) and the DHSC interim guidance UK Supreme Court 2026 judgment on what constitutes a deprivation of liberty - GOV.UK is the clearest guidance thus far that i have found. Ben Troke also linked to this resource in his presentation above which i think is great for commissioners and providers - DCC-i 7 Minute Briefing - Deprivation of Liberty after UKSC/2025/0042, it’s really accessible.

Your point about “constant supervision and control may still amount to a restriction requiring legal justification” is of course correct (NB: was this not also in fact the case before Cheshire West, it certainly was for me when i worked in provider services and that was pre-MCA and DoLS? Yeah i am old!), but to me AGNI was saying that constant supervision, and the ‘acid test’ is only one consideration in what is a multi-factorial assessment for the purposes of Article 5, in which we also need to consider “type, duration, effects and manner of the restrictions on the person, with no single factor being determinative”. By analogy what if the constant/supervision was mostly there to help a person achieve community access on a daily basis, attend college, while at the same time monitoring complex seizure activity, for which the person showed no indicators that they thought the supervision was a ‘major intrusion in their life’? That wouldn’t make me automatically think confinement comparable to a person in a prison cell. I would at the same time want really well written care plans explaining why that level of supervision is both necessary and proportionate.

For example, I can imagine a lot of people with profound / severe / moderate learning disabilities who may have a significant amount of constant supervision and control in their lives, and this would require high quality care plans from both the provider and the commissioner of the care, that explains why those arrangements are both necessary and proportionate and in the persons best interests, but still not automatically be arrangements that would amount to a confinement/DoL after applying the multi-factorial assessment. As the AGNI judgment explains “other legal regimes apply”, so, if i was the provider in that situation my core considerations would be application of CQC Regulation 9 to 13 and in particular correct application of the MCA (s4, s5 & s6 in particular in this situation) - these would be the legal regimes that would still apply even where arrangements are not amounting to confinement.

As you are delivering a session for care providers (and others) my concluding slide for provider services states something to the effect of:

The change to DoL - is NOT a removal of safeguards! As the Supreme Court explained at para 185 “other legal regimes and Convention rights apply”. For example:

I hope some of my waffling is in some way helpful.

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This DoL Checklist aimed at care providers may also be of interest - Deprivation of Liberty checklist for care providers

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First off — thank you. Your response was genuinely useful, especially the links.

After listening to Ben Troke’s webinar, I feel encouraged I’m on the right track; although with no appeal to authority, my ducks need to be doing a synchronised swim!

So, a small disclaimer: I have a not-so-secret mission. I have 20 years until I plan to retire at 75, and one big dream… better reviews for people in residential care. By better, I mean reviews where time and resource are proportionate not only to risk, but to intrusion. At the moment, the most intrusive support is too often treated as low risk and triaged off the table, or reduced to a phone review.

Ben’s point about some LAs effectively “putting the lights off” on DoLS really resonated. His message, that we need to make DoL matter less and good MCA practice matter more, is exactly where I hope we go.

I work for CareCubed with LA and ICB Commissioners, but we also train social work teams and brokers and support providers. We have a significant space in influencing practice. Our cost analysis tool is often wrongly assumed to be about cutting cost, rather than understanding it. That means I have to tread carefully: I do not want to validate blanket cuts or suggest all 1:1 is wrong. As employers they have been exceptionally supportive of a human rights/best value approach to understanding support. This is what will allow me to use AGNI to step further into this space, hopefully increasing the sense that RoL/good MCA practice matters. The tool makes the care more transparent, therefore where care is restrictive that too is clearer.

All of this waffle boils down to one point: AGNI and reduced DoLS make good reviews more important, not less. Care Act Reviews should be resourced proportionate to intrusion as well as risk.

I am not anti-restriction, or anti 1:1, or 2:1, where they are needed. But for too many people, once these supports are in place, they simply stay there, sometimes for decades, sometimes despite BIA advice, and sometimes with least restrictive practice barely mentioned once the (old money) DoLS bar has been met.

One question… is the consent without mental capacity relevant to all restriction despite whether it reaches the bar for DoLS, or is it limited to Article 5 and DoL?

5

So, in relation to this question:

In short the answer is - it is different. It is important to separate out the:

  • AGNI ‘valid consent’ for the purposes of article 5 which is strictly about ‘valid consent’ to arrangements that amount to confinement and
  • consent, or a lack of, for the purposes of acts in connection to a persons care and treatment that may include an element or restraint/restriction which is governed by the MCA (well explained by Alex Ruck Keene on his webinar here - AGNI resources – Mental Capacity Law and Policy).

In short, imposing restrictions (e.g. chemical restraint, physical restraint, mechanical restraint, sensors and trackers, body suites, restricting access to kitchens, etc) on a person in any care home / supported living / dom care type setting, who is unable to consent to those interventions because they lack the capacity to do so, is going to be governed by the MCA (s5 and s6 in particular) and further set out in the CQC regulations, in particular, Regulation 9: Person-centred care - Care Quality Commission, Regulation 11: Need for consent - Care Quality Commission (specifically Reg 11 (3) and (5) for the purposes of restraint), Regulation 12: Safe care and treatment - Care Quality Commission (specifically 12(2)(a)) and Regulation 13: Safeguarding service users from abuse and improper treatment - Care Quality Commission (specifically 13(4) and 13(7))… Obviously where the accumulation of restrictions begin to indicate DoL/confinement this will also engage wider article 5 DoL responsibilities (for care providers this is made clear in Regulation 12 and 13 specifically).

Documentation for restrictions imposed on people should be very straight forward in terms of evidencing conclusions reached, if people would actually read the regulations and the MCA and associated Code of Practice… I personally feel it is best explained in the MCA Code of Practice here (one of my favourite sections of the Code as it is so clear and simple in terms of what evidence is required. The […] sections are my additions below):

6.41 Any action intended to restrain a person who lacks capacity will not attract protection from liability unless the following two conditions are met:

  1. the person taking action must reasonably believe that restraint is necessary to prevent harm [evidence for this will be in the accompanying risk assessment & supporting care plan/records] to the person who lacks capacity [accompanied by a capacity assessment relevant to this specific care decision/matter at hand that requires restraint], and;
  2. the amount or type of restraint used and the amount of time it lasts must be a proportionate response to the likelihood and seriousness of harm [best interests assessment - inc. consultation with all interested parties, maybe use a balance-sheet for thinking through less restrictive alternatives].

(see MCA Code of Practice 6.39 – 6.53 and Mental Capacity Act - Section 6. Section 5 acts: limitations)

My concern with AGNI is not the ruling, but the fact that i am not convinced that both commissioners and provider services (not all, before anyone says ‘but i’m good’) are effective in their care recording around restrictive practices. Nor do we have a regulator equipped to truly hold both providers and commissioners to account.

So, with less people seen as being deprived of their liberty it will really be up to CQC to be the ones holding both providers and commissioners to account for the restrictions they impose on individuals and i am not sure they have the resources to do so. What AGNI was basically saying is you can’t use Article 5 to fix this problem - which they argue is what Cheshire West was trying to do:

185. Cheshire West creates a bright-line test which is too crude in its application and which leads to an over-extensive interpretation of deprivation of liberty on the basis of a misplaced policy concern that safeguards in relation to vulnerable people have to be provided pursuant to article 5. In our view, this policy-driven approach puts the cart before the horse. A crude application of article 5 cannot be a cure for the problems posed by caring for vulnerable adults with mental health or other cognitive disabilities. Nor is it necessary to adopt that interpretation of article 5 to safeguard the interests of such individuals, since other legal regimes and Convention rights apply in their case: see para 10 above.

I hope some of that is helpful… In terms of extra reading on this topic i would recommend Positive and Proactive Care: reducing the need for restrictive interventions and Reducing restrictive practice | Local Government Association.