The Supreme Court’s ruling in AGNI

On 2 June 2026, the Supreme Court handed down a judgment, The Attorney General for Northern Ireland’s reference (Deprivation Of Liberty) [2026] UKSC 16 (“AGNI”), which reshapes the legal framework for deprivation of liberty as we have all known it since the decision of P v Cheshire West and Chester Council & Anor [2014] UKSC 19.

“This reference, brought by the Attorney General for Northern Ireland (“the Attorney”), who is the chief legal adviser to the Northern Ireland Executive Committee, the devolved government of Northern Ireland, concerns the question of what counts as “deprivation of liberty” under article 5(1) of the European Convention on Human Rights (“the Convention”) for adults (by which we mean those aged 16 and over) assessed as not having the mental capacity under domestic law to make decisions for themselves about their residence and care arrangements, who are living in community settings amounting (or potentially amounting) to confinement”.

This decision, as is made clear in paragraph 1 of the judgment, applies to everyone over the age of 16 years, in line with the provisions of the Mental Capacity Act 2005. However, the decision also touches upon decisions relating to children under the age of 16 and may yet have further repercussions.

The decision overrules the Cheshire West “acid test” and significantly narrows the scope of Article 5.  It also changes what amounts to valid consent. Young people who lack capacity to make decisions in respect of their living arrangements, may not be able to validly consent.

It also returns to a multi-factorial assessment in line with earlier European caselaw pre-Cheshire West.

Accordingly, any application to the High Court or Court of Protection for authorisation of living arrangements previously thought to amount to a deprivation of liberty now needs to be reconsidered through the prism of the new decision, referred to hereinafter as AGNI [2026].

The end of Cheshire West

Those working within the area of transitions from children’s social care to adult services will be familiar with applications for the Court to authorise arrangements amounting to a deprivation of liberty. Since the decision of Cheshire West in 2014, these arrangements have been judged in accordance with the acid test, namely;

(1) The 'acid test' for deprivation of liberty is whether the person is under continuous supervision and control and is not free to leave.

(2) The following are not relevant: (a) the person's compliance or lack of objection; (b) the relative normality of the placement (whatever the comparison made); and (c) the reason or purpose behind a particular placement. §48-50 as per Lady Hale.

The Cheshire West decision, based on the European jurisprudence, confirmed that;

“It is common ground that three components can be derived from Storck, paras 74 and 89, confirmed in Stanev, paras 117 and 120, as follows: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state”. §37

(Storck v Germany (2005) 43 EHRR 6)

It is also worth reminding ourselves of Lady Hale’s words at paragraph 35 in the Cheshire West judgment, in relation to those who are incapacitated and cannot physically leave;

“…. it might once have been suggested that a person cannot be deprived of his liberty if he lacks the capacity to understand and object to his situation. But that suggestion was rejected in HL v United Kingdom. In any event, it is quite clear that a person may be deprived of his liberty without knowing it. An unconscious or sleeping person may not know that he has been locked in a cell, but he has still been deprived of his liberty. A mentally disordered person who has been kept in a cupboard under the stairs (a not uncommon occurrence in days gone by) may not appreciate that there is any alternative way to live, but he has still been deprived of his liberty. We do not have any difficulty in recognising these situations as a deprivation of liberty. We should not let the comparative benevolence of the living arrangements with which we are concerned blind us to their essential character if indeed that constitutes a deprivation of liberty” §35.

Cheshire West gave rise to a body of authority relating to the deprivation of liberty of children. In Re D (A Child) [2019] UKSC 42, the Supreme Court decided that it was outside the zone of parental responsibility for parents to give consent to the deprivation of liberty of a 16 or 17 year old, even where the young person lacked the mental capacity to do so themselves, (§90). It has also been established through a line of authority including In re AB (A Child) (Deprivation of Liberty: Consent) [2015] EWHC 3125 (Fam) that a local authority holding a care order cannot provide valid consent, regardless of the age of the child, although parents still retain the right to consent if arrangements pursuant to s.20 Children Act 1989 are in place, ERYC v The Mother & Ors [2026] EWHC 181 (Fam).

It was clear from the case law, that if a child or young person lacked capacity under domestic law, they could not provide valid consent to their arrangements.

In every scenario relating to potential deprivations of liberty since 2014, the acid test of Cheshire West has been applied. That decision has assisted practitioners to gauge whether a young person is objectively deprived of their liberty, judging whether a scenario is of an extent or degree to be a deprivation as opposed to restriction, for example Manchester City Council v CP & Ors [2023] EWHC 133 (Fam) in relation to mobile phones.

In relation to the subjective test, and with the complicating factor of parental responsibility, the subsequent question has been to question whether valid consent can be given, by either parents, depending on age, or the young person themselves.

The brave new world - AGNI

In AGNI, the Supreme Court has taken the unusual step of exercising its power to override its previous decision, (which involves the rare use of the House of Lords’ 1966 Practice Statement (Judicial Precedent) ([1966] 1 WLR 1234). The 2026 decision makes it clear that Cheshire West was wrongly decided;

AGNI described Cheshire West as

“…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…” (§185)

“The starting point in assessing whether someone has been deprived of liberty within the meaning of article 5 is the specific situation of the individual concerned, and the assessment is multifactorial, with account taken of a whole range of factors including the type, duration, effects and manner of implementation of the measure in question. This was the approach set out in Engel v The Netherlands (1979–80) 1 EHRR 647 (“Engel”) and Guzzardi v Italy (1981) 3 EHRR 333 (“Guzzardi”) and it has been consistently applied by the European court since then, and in many different contexts, including the one with which we are here concerned. The judgments of the European court show that no single factor is determinative. (ii) In addition to the objective element of confinement in a restricted space for a significant period…….” §53.

“To determine whether an individual is subject to such deprivation, a court must focus on their concrete situation and must take account of the whole range of factors in the particular case, including the type, duration, effect and manner of implementation of the measures in question”.  §184

“The approach of the European court emphasises the importance of taking all relevant factors into account, whereas the decision in Cheshire West abandons that. By adopting two factors as an acid test, the majority in Cheshire West wrongly isolated a small sub-set of factors and elevated it to a universal test that ignores all other potentially relevant factors”. §186

“Whether a placement amounts to a deprivation of liberty as opposed to involving only a restriction on the freedom of movement of an individual is plainly fact sensitive and a question of degree”. §194

The objective test reframed

Going forward, practitioners will need to consider whether an objective deprivation of liberty exists by reference to factors including the type, duration, effect and manner of implementation of the care plan, together with factors such as objection, relative normality, purpose of arrangements   rather than by reference to the acid test, which is now disapproved. There is also a change in language; whereas previous consideration was given to confinement for a “not negligible” length of time, the Court in AGNI referred to confinement for a “material” time (§4) and later to a “significant period” §53(ii). The original case of Storck v Germany (2005) 43 EHRR 6, from which the concept is drawn, uses the phrase “not negligible” §74.

When considering the paradigm case of deprivation, the Court referred to a prison cell;

“The relative normality of the placement is also a relevant factor in this assessment. Similarly, in situations that are far from the paradigm of confinement in a cell, the purpose for which a measure has been taken is a factor to be considered.” §53 (iv).

This is clearly a departure from Lady Hale’s approach that a “gilded cage is still a cage”.

Whilst stating at the outset that the reference relates to all over the age of 16 years, the Supreme Court does in fact go further and introduces the concept that those who are unable to leave due to “innate limitations” may not be deprived:

§195 “the Strasbourg jurisprudence reflects the need for coercion or some externally imposed restrictions on an individual that prevent them from exercising their fundamental right to physical liberty. However, the acid test in Cheshire West takes no account of the innate limitations to which an individual may be subject by reason of their own physical or mental condition. To the extent that the majority assumed that such a person would be subject to a deprivation of liberty under article 5 (see, eg, para 67), we disagree: see paras 145, 164–167, 171 and 176 above.

§196. Take the case of SM, for example. Lieven J recognised that SM (a 12-year-old with profound cognitive and physical disabilities, who responded like a child of a few months old) was under constant supervision and control, but this was because her condition was such as to require this by way of care, not to prevent her from leaving her placement. In fact, SM was wholly incapable of leaving, both because of physical inability and because she was unable to form any desire or intention to leave. In our view, the judge was right to conclude that this situation did not involve a deprivation of liberty within the meaning of article 5.”

The Court went on:

§198. This does not result in “liberty” in article 5 meaning something less for those who, because of their impairments, are unable to enjoy that liberty. Nor does it mean that their human rights are in any way different from, or less than, those of an able-bodied person of sound mind. Liberty means the same thing for everyone. As explained in Engel, it means physical liberty, including the freedom to go where one pleases. For those who are unable to do this because they are unconscious, in a minimally conscious state, or so profoundly disabled that they cannot conceptualise leaving let alone physically achieve this, they are not being prevented by a third party from doing something and are not being deprived of anything. The state may in some circumstances be subject to positive obligations (as the Secretary of State accepts) to take reasonable steps to prevent a deprivation of liberty, by, for example, providing a wheelchair or other aid to enable the individual to leave. But that is a wholly different point.

§199.      Nor does this amount to discrimination against those who are disabled. We agree with Lieven J that a disabled person in the position of SM is not in a “relevantly similar” situation to a non-disabled comparator (SM, paras 41–44). The non-disabled person is in a fundamentally different position from persons who are unconscious, or in a minimally conscious state, or profoundly mentally and physically disabled. The former is capable of leaving but prevented from doing so. The latter are simply, by reason of their condition, not capable of leaving. It follows that there is no less favourable treatment of people in a materially similar position.

As a principle, that point is valid to a child of any age. SM was herself under the age of 16 years. The decision above is more in line with R (Ferreira) v Inner South London Senior Coroner [2017] EWCA Civ 31; [2018] QB 487 (“Ferreira”), which was decided in relation to an adult in intensive care. However, the non-disabled comparator as applied in both Cheshire West and Re A-F (Children) [2018] EWHC 138 Fam is no longer the test. It follows therefore that on the objective test, cases will have to be reviewed to consider whether a scenario is in fact a deprivation.

It should also be noted that the issue of whether a person is objecting to the confinement is relevant to the question of objective deprivation of liberty. This is made clear by the DHSC guidance published 15 June 2026.

The DHSC guidance places particular emphasis on the identification of objection. It states that objection is relevant both to the question of confinement and to the likelihood of valid consent being present. Objection may take many forms and is not limited to an express verbal refusal. The guidance gives examples including attempts to leave a placement, refusal of care or treatment, physical resistance to care, the use of restraint or one-to-one supervision to manage behaviour, covert medication where medication is being refused, and the use of sedating medication that impacts upon a person's ability to object. Importantly, the guidance states that where a person is objecting, that points towards a deprivation of liberty.

This is one area where AGNI marks a fundamental shift. Under Cheshire West, a person could be deprived of liberty even if they didn’t understand it or couldn’t object. Under AGNI, if a person’s own disability is what prevents them leaving - rather than the State - then Article 5 is not engaged.

Valid consent – the subjective element

The other major area of departure from Cheshire West relates to the subjective element; the question of valid consent. As mentioned above, prior to 2^nd June, there was a body of caselaw to support the contention that;

• Under 16 years and subject to s.20 – parents can consent, as could a competent child.
• Over 16 years and not subject to a care order – parents cannot consent. A young person with capacity can do so, a young person lacking capacity to make decisions about residence cannot.
• Any age if subject to care order – neither the LA or parents can consent.

AGNI does not address the interplay with Children Act 1989 public law orders. However, those over 16 years who otherwise lack the mental capacity to make decisions about residence, may now be found to be providing valid consent to the arrangements.

In AGNI, the position of those lacking capacity to make decisions about residence is distinguished from an ability to give valid consent to a deprivation of liberty;

“Valid consent is therefore a powerful factor in the assessment. It is an autonomous concept and not to be equated with the concepts of consent for the purpose of waiver of rights under the Convention or of legal capacity in domestic law. The fact that an individual lacks legal capacity to decide on their living and care arrangements does not necessarily mean that they are de facto unable to understand and consent to those arrangements in a manner that prevents those arrangements from becoming a deprivation of liberty (see Stanev, HL and the other judgments of the European court considered below). On the contrary, an individual without legal capacity under domestic law, but who is conscious of their environment and has a basic understanding of their living circumstances so that they can express their view about their situation, who manifests their acceptance of the situation they are in, should have their opinion respected when an assessment is made of whether they are deprived of liberty under article 5.” §53 (ii)

Elsewhere in the judgment, the Court elucidates further as to the concept of valid consent, referring to it as “tacit agreement”, and observing that it was unfortunate that the consent point was never argued in Cheshire West;

§135. “Where an individual lacks full mental awareness (in a factual sense) in relation to their circumstances, so that they cannot be regarded as someone with full ability to decide how they wish to be treated for all purposes, they may nonetheless be sufficiently aware of the circumstances in which they are maintained in confinement as to be able to register whether they are happy or unhappy with those circumstances and to enter protests against their treatment if they are unhappy with them. As the authorities discussed below make clear, for such individuals this is the dividing line between cases in which they consent to their confinement and those in which they do not, for the purposes of an assessment of whether there is a deprivation of liberty under article 5. It is an important line in Convention terms, since choices made by individuals with impaired understanding should be respected where possible, as an aspect of respecting their dignity as human beings. Whether someone experiences the situation in which they are being kept and cared for as amounting to detention contrary to their wishes or as constituting a broadly supportive home environment where they are content to live their life is a basic aspect of human experience, and there is accordingly no good reason to disregard or discount the individual’s own evaluation of their position. They may have impaired understanding of many things and may lack capacity in a full legal sense, but they may nevertheless have a fundamental understanding of whether they are broadly happy or unhappy about something so basic, and their understanding of and choices regarding that should be accorded respect.”

§139 “The basic and fundamental nature of the issue of whether someone is happy or unhappy about their care and living arrangements means that it is precisely the sort of matter about which the individual concerned is likely to have views which are meaningful, and which should be sought and should carry weight, even if the individual is mentally incapacitated in other respects. We do not consider that there is any sound reason to discount their expressions of view in that regard when assessing whether there is a deprivation of liberty under article 5, particularly when it is borne in mind that negative consequences for them may follow from such an assessment. In Stanev, at para 153, in the context of assessing whether a deprivation of liberty could be justified under one of the sub-paragraphs of article 5(1), the European court stated that “the objective need for accommodation and social assistance must not automatically lead to the imposition of measures involving deprivation of liberty. The Court considers that any protective measures should reflect as far as possible the wishes of persons capable of expressing their will”. In our view, that approach accords with what was said in Oliveira and has general application, so that it is relevant to the assessment of whether there is a deprivation of liberty in the first place. The subjective element in that assessment, as set out in Storck, para 74, and Stanev, para 117 (para 120 above), should give effect to this principle of respect.”

However, there are questions of the degree to which compliance can be taken to amount to consent;

§188. “Depending on the circumstances, mere compliance or acquiescence may carry little weight in determining whether there is confinement, particularly if it is accompanied by the administration of sedative medication which is capable of suppressing objections: see for example, HL paras 90–91 (paras 152–156 above). The administration of medication (including antipsychotic drugs or tranquilisers) is likely to be highly relevant in supporting the existence of the objective element of confinement because it suppresses the ability and freedom to express wishes and feelings. Its relevance is increased if the administration of it is accompanied by force. But again, the absence of medication may be a relevant factor pointing in the opposite direction.

§189. However, if an individual is able to, and does, express their wishes and preferences about their living arrangements, and is happy with them, it will ordinarily be difficult to see how they are being coerced.”

A difficult question arising from AGNI is how practitioners distinguish between genuine contentment and apparent compliance. The Supreme Court repeatedly emphasises the need to examine the person's actual wishes and feelings rather than simply assuming that a lack of objection amounts to consent. This is likely to be one of the most challenging areas of practice following the judgment.

The DHSC guidance provides a helpful steer on this issue. It makes clear that practitioners should not equate compliance with consent and should instead focus on gathering evidence of the person's actual wishes and feelings. The guidance envisages a detailed examination of behaviour, communication, records and discussions with those who know the individual well, whilst remaining alert to factors such as sedation, pressure or fear that may mask objection.

It is perhaps of assistance that the Supreme Court considered the concrete examples of MIG, MEG, and P, the individuals in the Cheshire West case;

“MIG, the older of the two sisters, had a moderate to severe learning disability. She had very limited cognitive ability, experienced problems with her sight and hearing, communicated with difficulty and required help crossing the road because she was unaware of danger. She was living with a foster mother in her private home and regarded the foster mother as “Mummy”. Her foster mother provided her with intensive support in most aspects of daily living. MIG was not on any medication. She was not restrained or locked in. She had never attempted to leave the home by herself and showed no wish to do so, but, if she had done so, her foster mother would have restrained her. MIG attended a further education college daily during term time and was taken on trips and holidays by her foster mother.

72. MEG had mild learning disabilities, and her cognitive ability was limited. She lived with three others in a small NHS residential home for learning disabled adolescents with complex needs. She had occasional outbursts of challenging behaviour towards the other three residents and sometimes required physical restraint. MEG was prescribed (and administered with) tranquilising medication to control her anxiety. She was not in a locked environment but had one-to-one and sometimes two-to-one support. Continuous supervision and control were exercised to meet her care needs. MEG was accompanied by staff whenever she left the home. She attended the same further education college as her sister during term time and had a full social life. She showed no wish to go out on her own, and so there was no need to prevent her from doing so, but Parker J concluded that if she had tried to leave, she would have been restrained or brought back for her own safety.

75. The case of P involved a 38-year-old man born with cerebral palsy and Down’s syndrome. Since 2009 he had lived in a staffed bungalow (referred to as Z House) with two other residents, near his mother’s home. P could walk short distances but otherwise required prompting and help with all activities of daily living, getting about, eating, personal hygiene and continence. He sometimes required intervention (amounting at times to physical restraint) when he exhibited challenging behaviour but was not prescribed any tranquilising medication. He was found by Baker J in the Court of Protection to be “completely under the control of the staff” and unable to “go anywhere or do anything without their support and assistance” (para 59 of the judgment of Baker J,[2011] EWHC 1330 (Fam)).

In Cheshire West, it was held that all three individuals were deprived of their liberty; P unanimously, and MIG and MEG by a majority of 4 to 3. In AGNI, the Court has effectively upheld the minority decision in relation to MIG and MEG, reserved their position in relation to P but expressed doubt about his circumstances amounting to a deprivation.

203. “In our view, in the circumstances described by Parker J and reviewed in this court, MIG was not subject to a deprivation of liberty. We consider that there were sufficient indications of her being happy with her living arrangements to amount to valid consent, in accordance with Storck, para 74. Her living arrangements were as close to normal as possible and such minimal element of confinement as existed was for her benefit and protection; so in our opinion the objective element of confinement was not present either. Overall, her situation was very far removed from the paradigm case of confinement in a prison cell.

204. We also consider that MEG was not subject to a deprivation of liberty. There were sufficient indications that she was happy living in the NHS facility where she was placed as to amount to valid consent to being there. She showed no wish to leave the facility or go out on her own. Although she received tranquillising medication, that was not administered with a view to disabling her from forming a view about her living circumstances and does not seem to have had such an effect. The basic pattern of MEG’s response to her living environment was that she was happy to be there, even if there were occasional upset outbursts from time to time. We also consider that the objective element of a deprivation of liberty was not present. The living arrangements were as normal as possible in the circumstances, and the continuous supervision and control to which she was subject were directed to meeting her care needs rather than to making her a prisoner. Although she was physically restrained on occasion, that was done for her own protection or for the protection of others, and not with a view to punishing her. Overall, again, her situation was far removed from the paradigm case of confinement in a prison cell.

205. We would prefer to reserve our opinion about the situation of P. We have not heard argument about his case, and we note that this court in Cheshire West came to the unanimous view that he was subject to a deprivation of liberty. We are not in a position specifically to overrule that part of the judgment. Nonetheless, it seems to us that there were many features of his case, as described by Baroness Hale at para 17, which would tend to indicate that he was not subject to a deprivation of liberty. We would be doubtful that when P was living at home with his mother, as he did until the age of 37, that constituted a deprivation of liberty. When he moved to Z House, the basic arrangements continued and everything was done to provide care for him in a similar way and in as normal an environment as possible. It is not obvious that P’s case bore any real similarity to confinement in a prison cell. It suffices here to say that we have some sympathy with the view of Munby LJ in the Court of Appeal that he was not subject to a deprivation of liberty.”

The practical point is that these examples may be helpful as a starting point, particularly before we have more guidance or case law from the courts to look to those cases as a guide, but each case will turn on its own facts.

What does this mean for 16 and 17 year olds?

The Mental Capacity Act applies from age 16, and AGNI confirms that its new approach to deprivation of liberty applies to everyone aged 16 and over. Therefore, this decision directly affects young people.

AGNI narrows the scope of what counts as a deprivation of liberty. That means a large number of 16‑ and 17‑year‑olds - especially those living at home, or in arrangements that look like ordinary family life, may now fall outside Article 5 altogether. Before turning to consent, we have to ask: is this actually a deprivation of liberty? And for many young people, the answer will now be no.

There will still be young people whose arrangements are much more restrictive - bespoke placements, children’s homes, high‑staffing environments, the kinds of cases which regularly come before the court. For those young people, the level of restriction may still amount to objective confinement. It remains fact‑specific.

If the arrangements amount to a deprivation of liberty, then we must consider the question of valid consent. Whilst there isn’t specific guidance (as yet) on dealing with those under 16, the reasoning in the judgment relating to consent and confinement is likely to influence under 16s too. 

For 16‑ and 17‑year‑olds, AGNI introduces a really important shift: a young person may lack MCA capacity to make a residence decision, but still be capable of giving valid consent for Article 5 purposes.

It is important to look much more closely at the young person’s wishes and feelings — what they are saying, what they are doing, whether they appear happy or unhappy, whether their views are consistent, whether there is any coercion, whether they are simply complying or genuinely consenting. It is also imperative to consider the impact of medication or sedation, because that can suppress objections.

The bottom line is this: AGNI means fewer 16‑ and 17‑year‑olds will meet the threshold for deprivation of liberty, and more may be found to be validly consenting.

Guidance

DHSC guidance following AGNI – practical implications

The Department of Health and Social Care published interim guidance on 15 June 2026 following the Supreme Court's decision. The guidance provides an indication of how the Department expects practitioners, providers and local authorities to respond to the judgment in practice.

The first point to note is that the Department accepts that this decision represents a significant shift in deprivation of liberty law. The guidance expressly states that, in the long term, the changes brought about by the judgment are likely to reduce significantly the number of deprivation of liberty authorisations. Therefore acknowledging that many people who would previously have fallen within the scope of DoLS under the Cheshire West framework may no longer require authorisation under the new approach.

A significant theme running throughout the guidance is the increased importance of wishes, feelings and objection. It gives a helpful steer on how to determine wishes and feelings, and importantly when considering the question of valid consent, emphasises that practitioners should move beyond asking whether a person is merely compliant and instead ask: how do we know what this individual actually understands and wants?

The guidance also identifies circumstances that may affect a person's ability to express their wishes and feelings, and which practitioners should be alert to when carrying out assessments.

They are: 

• sedating medication
• fear of consequences
• perceived pressure
• feeling that they do not want to be a burden

The guidance envisages a much more detailed examination of their actions and behaviour, communication, care records, medical notes, family evidence and staff observations in order to determine whether an individual is content with their arrangements or is objecting to them. It also stresses the need to provide support to enable individuals to communicate their wishes and feelings wherever possible.

The guidance makes clear that objection is now highly relevant to the assessment of deprivation of liberty. Attempts to leave the setting, refusal of care or treatment/physical rejection of care (example given is pushing staff away), physical restraint or 1-1 care to manage behaviour, covert medication (if objecting to medication) and the use of sedating medication to manage behaviour point towards a deprivation of liberty taking place. When a person is objecting, it follows that valid consent is unlikely to be present. 

Conversely, where an individual is capable of objecting but does not do so, this may point away from a finding of confinement. This marks a substantial departure from the post-Cheshire West position.

If in doubt about whether someone is objecting, or fluctuations in objections, then the advice is to refer to the local authority or COP. Should also continue to use the DoLS processes and court applications when there is any doubt as to whether arrangements constitute a dol, including where there are doubts about valid consent or where restrictions are significant. Emphasises the importance of getting legal advice. 

In respect of existing authorisations the guidance states that:

• Existing DoLS authorisations should be reviewed where, following AGNI, the person may no longer be considered deprived of their liberty.
• Authorisations can remain in place pending review and this will not, of itself, amount to an unlawful deprivation of liberty.
• Local authorities should develop and document a clear approach to managing existing caseloads, referrals and authorisations following the change in the law.
• Decision-making should be carefully recorded, particularly where authorisations are allowed to lapse because they no longer fall within the scope of DoLS.
• Restrictions can be reduced without a fresh authorisation or review where an individual no longer requires the same level of restriction under an existing DoLS authorisation.

The guidance recognises that there are likely to be many individuals currently subject to authorisations who may no longer fall within the scope of DoLS, requiring a period of transition and case review by local authorities.

However, the overall tone of the guidance is one of caution.  Practitioners are repeatedly advised to continue using DoLS procedures and Court of Protection applications where there is any doubt, and to ensure that existing safeguards such as advocacy and Relevant Person's Representatives remain in place where appropriate. It stresses the importance of an MCA 2005-centred approach. 

Conclusions

The decision in AGNI takes effect from 2 June 2026. It requires no further gloss, although the DHSC has now published interim guidance on its practical application. However, the core principles of the Mental Capacity Act remain unchanged.

Children and young people who are subject to orders permitting their deprivation of liberty will need their cases to be reviewed. Practitioners need to be prepared to address the question of whether a package of care amounts to a deprivation of liberty through the revised lens of AGNI and take a broader, multi-factorial approach than before.

Jacqui Thomas KC and Chloe Lee are barristers at Spire Barristers.