Human rights committee "remain concerned" about implications of Supreme Court AGNI deprivation of liberty ruling in practice

In A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 [2026] UKSC 16 (“AGNI”), the Supreme Court overruled its 2014 decision in Cheshire West, which it concluded had been wrong in principle.

Giving the judgment of the Supreme Court, Lord Sales and Lady Simler concluded that in setting out the acid test the majority decision in Cheshire West went beyond the Strasbourg jurisprudence and departed from the long-standing multifactorial approach to determining when a person is deprived of liberty.

The JCHR first wrote to the Department of Health and Social Care in July concerning the implications of the ruling.

In her response in September, McGovern said the Government “respects the Supreme Court’s decision” and aims to “support the health and care sector to understand the judgment and apply it lawfully and consistently”.

She emphasised the continued need for “careful, person-centred assessment” where decisions affect people’s liberty and autonomy, following the ruling.

In a follow-up letter last week (15 October), Alex Sobel MP, chair of the JCHR, said the committee welcomed the Government’s recognition of the importance of consistent decision-making.

“We also welcome your agreement that robust safeguards remain essential where decisions affect people’s liberty and autonomy and your commitment to upholding the rights of disabled people, to ensuring compliance with equality and human rights legislation and to supporting the implementation of the judgment in a way that protects people’s rights, dignity and well-being.”

Sobel added that the committee understood from McGovern’s letter that the Government does not consider it necessary to legislate to put in place additional protections for the cohort who received Article 5 compliant procedural protections prior to the Supreme Court’s decision but who will no longer do so now they are no longer considered to be deprived of their liberty.

The Government is of the view that existing legislation, such as the Mental Capacity Act 2005, the Care Act 2014 and the Human Rights Act 1998, alongside guidance, training and good practice would provide the necessary protection.

However, Sobel said the JCHR “nevertheless remain concerned about the implications of the judgment in practice and are interested in the steps that are being taken to support implementation of the new regime”.

In the letter he said the committee would like more detail on the work that the Government is doing with stakeholders to consider the implications of the Supreme Court’s AGNI ruling. “What form does this work take, who is involved and what is the intended output?”

The letter also called for an update on the progress of the DHSC’s proposed additional guidance – expected this autumn – and its intended content.

“How will it address concerns about consistency of decision-making when applying the multi factorial assessment established by the Supreme Court? Will it address, in particular, non capacitous consent?” Sobel asked.

The letter went on to ask the Minister to set out the steps that will be taken to monitor the consequences of the Supreme Court judgment moving forward.

Sobel wrote: “How will you assess whether existing legislation is providing adequate protection for those no longer considered to be deprived of their liberty?”

The letter calls for a response by 30 October 2026.