Impact of AGNI: deprivation of liberty and the Court of Protection

After over a decade, the ‘acid test’ is no longer the test when determining whether a person is deprived of their liberty. In A Reference by the Attorney General for Northern Ireland (AGNI) of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 [2026] UKSC 16, the Supreme Court (applying the Practice Statement 1966) over-ruled the acid test. It held, instead, that it is necessary to consider the individual’s concrete situation, and apply a multifactorial approach, focusing on the type, duration, effect and manner of implementation of the restrictions on their liberty.

The Supreme Court found that, contrary to the judgment in Cheshire West, there is an overlap between the subjective and objective elements of a deprivation of liberty, and that the presence/absence of objections, type of setting, ‘relative normality,’ and purpose of care arrangements may all be relevant to whether the objective element is made out.

The AGNI ‘test’ is less clear than the ‘acid test.’ Energy will now be expended on determining whether a deprivation of liberty objectively exists. This is a significant shift away from the Cheshire West years, when disputes about the existence of a deprivation of liberty were relatively rare, and the focus was on the type, quality and adequacy of the care arrangements available to someone who was formerly regarded as deprived of their liberty. This was on consideration of whether those care arrangements are the least restrictive available in the person’s best interests, and should be authorised for up to 12 months.

The Supreme Court has also changed the approach to determining whether the subjective element of a deprivation of liberty (lack of valid consent) is present. Under Cheshire West, a person who lacked capacity could not validly consent to arrangements which deprived them of their liberty.

In AGNI, the Supreme Court ruled,  “A person may not have capacity to make decisions about their care and residence arrangements, but if they have a basic level of awareness and consciousness of their living arrangements that is sufficient to enable them to know and communicate whether they are happy or unhappy with them, they may be treated as able to give or withhold valid consent to confinement by an expression of their wishes and feelings” (paragraph 201).

The Court also found that in some cases, tacit consent may be sufficient although it warned that where there is serious doubt, no inference of valid consent should be drawn (see paragraph 191 of the judgment). The subjective interpretation of what may or may not equate to happiness or unhappiness, how this is to be judged and by whom, is currently vague. This may pose very real disadvantages to a cohort of people who have previously benefitted from judicial and statutory oversight.

The AGNI decision inevitably means a loss of procedural protections for some for whom the “DOLS” under Schedule A1 Mental Capacity Act (MCA) 2005, or the “Re X” process, provided safeguards, but who are no longer to be counted as deprived of their liberty on the application of the new test.  The Supreme Court pointed to other safeguards, conferred by Article 8 ECHR (citing the decision in Neary [2011] EWHC 1377, on which increasing reliance is likely to be placed) and other domestic law protections, including in the MCA 2005, the MCA 2005 Code of Practice, and Care Act 2014. [1]

There are other statutory schemes and guidance providing rights to review and some rights to advocacy.  For example, the requirements relating to the Dynamic Support Register and Care (Education) and Treatment Reviews (C(E)TRs) are in place to review and mobilise the support needed by autistic people or individuals with a learning disability, who have been identified as at risk of an admission under MHA 1983 [2]. The question arises whether frameworks outside of “DOLS” will be consistently implemented.

Notwithstanding AGNI, section 6 MCA 2005 provides an important check on the use of restraint. This is defined to include where someone “restricts P’s liberty of movement, whether or not P resists”, requiring that there must be reasonable belief that the act is necessary to prevent harm, and it must be proportionate to the likelihood of P suffering it and of the seriousness of that harm.

Garden Court’s Community Care, Court of Protection and Mental Health Law teams are experienced in dealing with matters involving deprivation of liberty, having covered many cases, day to day, brought to court under the Re X procedure for people living in the community. This is in addition to challenges under s 21A MCA 2005, and challenges to detention under the MHA 1983. We have closely observed some of the benefits that Cheshire West brought. The Court of Protection has been able to determine significant issues in relation to the care of highly vulnerable individuals. Those who are in hospitals and care homes, have benefitted from access to non-means tested legal aid.

One example of the sort of gains we have seen for highly vulnerable young people, in the context of Re X type cases, is the promotion of joint working between Adult Social Care and Education where the young person is moving from Children’s Services. It is, at the very least, highly questionable that there could have been any other specific response to problem areas without access to the Re X process.

Another example is the securing of respite for parents and others with a caring role for a young person with complex needs. Further examples include; ensuring that care plans clearly set out what forms of physical restraint can and cannot be used in relation to a vulnerable young person, and remedying isolation and a lack of meaningful activities. These cases concern highly vulnerable individuals, for whom the question ‘does their care plan represent the least restrictive available option in their best interests?‘ [3], raises very real and substantial issues.

In the wake of AGNI, it may be the case that there is a greater need for resort to public law remedies, judicial review, and human rights challenges (if there is someone to bring the case on the person’s behalf), where the Art 5 scrutiny would previously have prompted compliance. These routes may not be accessible to those who are managing the complex needs of a family member and have no ready reference to legal process. Securing legal aid as well as legal representation from community care lawyers to pursue judicial review applications are potential obstacles.

Practitioners are digesting this new reality. Over the coming months, cases will involve grappling with the application of the Supreme Court’s test to real live circumstances in determining where the new lines delineating whether confinement amounts to a deprivation of liberty are to be drawn. Each case needs to be looked at individually and with care.

Garden Court Chambers Court of Protection Team

Members of our Court of Protection Team are available to discuss cases and queries informally. Please email our clerks at copclerks@gclaw.co.uk.

Notes

[1] Art 5 positive obligations may also require safeguards to identify and protect against arbitrary deprivations of liberty arising (the contents of which are a topic for a separate discussion).

[2]  ‘Dynamic support register and Care (Education) and Treatment Review Policy and guidance’, NHS England, 2023

[3] In Re NRA [2015] EWCOP 59; (2015) 18 CCLR 392, paras 41 and 70 Charles J set out the relevant test for when a s 16(2)(a) MCA 2005 order should be made that authorises a deprivation of liberty.