By Celia Kitzinger, 1st July 2026
This is the first time, post-AGNI, where I’ve seen new Deprivation of Liberty Safeguards authorised by the court[1] – and it surprised me, as P is a patient in hospital who needs urgent treatment for his brain injury.
The Trust made an application for a declaration that it would be lawful to administer the standard recommended clinical treatment for P’s condition: there was no dispute about either his diagnosis or the appropriate medical treatment – except from P himself.
He’s resisting treatment because his brain injury causes him to be unable to understand he needs treatment (he thinks there’s nothing wrong with him). He refuses permission to insert cannulas and removes them after insertion. To treat him successfully, doctors will need to sedate him. The Trust applied for court authorisation of general anaesthetic for five days (for treatment usually given on ward) and sedation as necessary subsequently, both effectively as restraint to enable treatment.
The Judge authorised treatment (unsurprisingly) – and also authorised DOLS.
The hearing
The case (COP 20035691) was heard by Ms Powell KC on 22nd June 2026.
It was the first hearing in a case concerning a man in his forties who’s been unwell for around 5 months with a deteriorating mental state and psychotic symptoms. He was originally detained for two months under the Mental Health Act 1983, but was subsequently discovered (following MRI brain imaging, lumbar puncture and EEG) not to have a primary psychiatric disorder but instead to be suffering from autoimmune encephalitis – a serious but often treatable condition in which the body’s immune system mistakenly attacks the brain, causing inflammation (“encephalitis”). By the end of April, his detention under the Mental Health Act 1983 was rescinded on the basis that his condition was organic rather than psychiatric.
There is evidence to override the presumption of capacity in relation to medical treatment, notably from a consultant psychiatrist, and from the neurology team. P “demonstrates severe cognitive impairment, requires one-to-one supervision, engages in occasional episodes of aggression, is tangential in his speech and is developing language dysfunction – he has a poor insight into his illness, insists he’s completely well, and is not aware he’s in hospital”. When the Official Solicitor’s agent visited him, his answers to questions about his medical condition and the proposed treatment were “confused” and “unintelligible”.
The Treatment Plan proposed as being in his best interests is pretty standard for autoimmune encephalitis: 5 sessions of therapeutic plasma exchange, testicular examination and imaging, and brainimaging; 5 days of Intravenous Immunoglobulin plus oral steroids if clinically appropriate; and peri- and post-operative care and treatment as necessary. The only unusual feature of the treatment is the need to deliver it with restraint and under general anaesthesia or sedation – the only way it can be delivered given that he’s resisting treatment. There is consensus that this is in his best interests – from the clinicians, the Official Solicitor and an Independent Mental Capacity Advocate (IMCA) who has visited him (no family members or friends have been involved and the judge said she knew very little about his pre-illness life). Even with treatment, “he is not going to go back to being cognitively unimpaired – but without the treatment the future is terrible, and avoidably terrible” (Counsel for the OS). As the judge put it, “it is likely, given the length of illness he has already suffered, that there is a degree of irreversible brain damage”.
The Trust (Barts Health NHS Trust, represented by Parishil Patel KC instructed by Hill Dickinson LLP) was seeking:
(i) a declaration that P lacks capacity to conduct these proceedings and to consent to medical treatment; and
(ii) an order that P should be treated in accordance with the Treatment Plan – to include restraint and/or sedation as required to deliver the Plan safely.
A draft order had been agreed between the Trust and the Official Solicitor (represented by Katie Gollop KC), effectively to make that declaration and order – and that’s the order the judge ended up making in the course of a short oral judgment at the end of the hearing.
The judge also authorised Deprivation of Liberty Safeguards. In light of the recent Supreme Court decision in AGNI, I hoped to understand the judge’s decision-making process in authorising a hospital DOLS – but it was over in a flash with no explication.
The judge reported the submissions made (in written form) by the applicant Trust: “In the Trust view, the circumstances under which he will be restrained and sedated amount to a deprivation of liberty under Art 5, using a multi-factorial approach. These methods are coercive as it is likely that he will not remain in hospital without them. His compliance will be secured through sedation.” She went on: “I agree with those submissions and authorise the DOLS as necessary and proportionate“.
On what legal basis did the judge decide to authorise DOLS?
Given the uncertainty and confusion that’s followed the AGNI judgment, many of us are looking to court judgments for careful articulation of the legal basis for deciding whether or not the living arrangements of particular Ps, considered in a multi-factorial way, meet the criteria for ‘deprivation of liberty’. There is, as Lucy Series has said, “widespread confusion and disagreement on the ground, already, about how to apply this test. There are so many potential elements that may or may not be relevant, and little clarity about how they work in combination with each other” (“Elephants, mosaics and hammers“).
In this case, the relevant elements of P’s situation that the judge said mean that P’s living arrangements meet the criteria for ‘deprivation of liberty are that he’s “restrained and sedated” (she could have added, if I heard right, that he’s also under one-to-one care) and he would “not remain in hospital” if he weren’t compelled to. But what that this tells me is that P meets the criteria for “deprivation of liberty” under the Cheshire West definition, because he is subject to ‘continuous supervision and control’ and ‘not free to leave’. The judge didn’t provide any reasoning as to how this P is deprived of his liberty under the AGNI interpretation. Simply referring in passing to a “multi-factorial approach” without spelling out any of the multiple factors purportedly considered in making a DOL assessment really doesn’t illuminate how she arrived at her decision. At the very least, I expected a reference to P’s active objections to treatment: that must be relevant to (if not determinative of) the decision that he’s deprived of his liberty (§187 AGNI)
I’m not disputing that the man at the centre of this case is deprived of his liberty, or that the judge made the correct decision. My gut reaction is that he is deprived of liberty and that also seemed to be the undisputed view of all professionals and the judge in this hearing. I expect that’s why it wasn’t really argued orally in court. I expect the relevant arguments had already been provided in the written documents before the judge.
How would one apply AGNI to this case? After the hearing, I posted my own summary of the case and some questions about it on various group discussion forums with MCA professionals about how to apply the AGNI multi-factorial approach. Not surprisingly, I received contradictory and speculative responses from a range of people (including COP lawyers). One common response was simply “because he’s objecting to treatment” (drawing on §187 and §151 AGNI, although these paragraphs weren’t cited orally in court by counsel or by the judge). Then there’s the FG case (a court-ordered caesarean) as precedent for claiming that Article 5 is engaged if P is being sedated to stop them leaving to avoid treatment: AGNI did not suggest that this was wrong. But there’s this: “In ordinary circumstances, an individual in hospital to receive treatment (and who, for their own protection, would be prevented from leaving while, say, confused and unable to think because of medication) would not be regarded as suffering a deprivation of liberty within the meaning of article 5.” (§145, AGNI). This P’s circumstances, it was suggested, are not “ordinary” – because he’s objecting. There was some discussion of the order in which the “objective” (not free to leave etc) and “subjective” (he’s objecting) elements should be assessed – and if it’s “iterative” so that the subjective is part of the objective, how exactly that should be done in this case? Some suggested that this P meets the requirements for being deprived of his liberty because the restrictions go beyond what other patients with the same illness receiving the same treatment would need (because their treatment would be ward-based, without general anaesthesia and sedation). Others speculated that perhaps it was simply that the court was more focused on the (urgent) best interests issue and just played it safe on the DOL issue without detailed arguments (which seems to me to be absolutely true!).
In seeking to understand how the DOL decision was made in this case, I did not have the benefit of Position Statements. In compliance with the Court of Appeal decision in Gardner, I was sent a “Case Summary” instead – a detailed (5-page) document covering helpful information about P, the parties, and the application, as well as a “chronology of factual background” (essentially a list of medical events extracted from the consultant neurologist’s witness statement). But the “Case Summary” does not cover any legal arguments made by the parties – and it barely mention ‘deprivation of liberty’ (it just provides, in the chronology, a date on which a DOLS was sought). I strongly suspect that the relevant legal arguments, with case law and citations from paragraphs of AGNI, are in the Position Statements, and that they underpinned and were relied on by the judge in making her decision. But without the Position Statements, and without substantive oral argument, observers can’t know why or how a decision is made. In the end, despite having watched the hearing and heard the oral judgment, I don’t know the legal basis on which this judge made the decision she did about deprivation of liberty – which pretty much defeats the purpose of observing the hearing in the first place.
Facts about P can be sensitive, and that was given as a reason in Gardner (in the Court of Appeal) for withholding Position Statements from observers. But position statements are supposed to be legal arguments and they should be the least sensitive of the legal documents. The ironic result in this case is that I now have information about P’s testicles conveyed in a “Case Summary” but know virtually nothing about the legal basis for decision-making concerning them. And the one thing I most wanted to understand in the wake of AGNI – on what legal basis did this judge decide that P is deprived of his liberty – was entirely opaque to me.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky (@kitzingercelia.bsky.social)
[1] For a helpful resource on the AGNI judgment see https://www.39essex.com/wp-content/uploads/2026/06/2026-UKSC-16-Summary-for-website.pdf. What I’ve seen frequently, since the AGNI judgment was handed down, is (a) a decision to delay until a future hearing judicial determination as to whether or not residence and care constitutes a deprivation of liberty; and (b) ending of proceedings because they are newly recognised as having been “improperly constituted” as DOLS or s.21A under the now superseded Cheshire West definition.
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