“Complete failure” of Fit to Discharge proceedings before Lieven J: Carers suspended, allegations of abuse, and no immediate prospect of discharge

By Celia Kitzinger, 30th August 2026

An already appalling situation has become even worse for the vulnerable woman in these long-running Court of Protection proceedings. The judge, Mrs Justice Lieven, described the recent turn of events as “extraordinary”.

In brief, the court determined about a month ago (on 28th July 2026) that it was in the best interests of the protected party (“P”) to be discharged home from hospital as soon as practicable, with care provided by “The G Agency”. Since then, allegations of abuse have been made against this agency’s carers by both the Official Solicitor and by family members. A safeguarding investigation is underway with Essex County Council. The G Agency has suspended six members of its staff, and the local authority has terminated its contract with them. The woman at the centre of the case remains in hospital and the ward now has an outbreak of CPE[1], an antibiotic-resistant ‘superbug’ , and P has tested positive. The hospital plan is to temporarily close the ward in order to deep-clean it, but (as of 21st August 2026, the date of the last hearing) there was nowhere for P to go. And as long as P remains on the ward, more than 30 beds remain unavailable, creating what the Trust calls “an extremely unsafe position” for other patients.

These are the latest developments in a case (COP 13630253) concerning a vulnerable woman who’s been in hospital and deprived of her liberty (despite being fit for discharge) for more than a year. The delayed discharge was initially caused by extensive delays in completing a care plan and has since been compounded by her home having been left dirty and unsafe by carers – and now by the allegations of abuse. All the parties agree that staying in hospital is not in P’s best interests.  She has a moderate learning disability, complex post-traumatic stress disorder, generalised anxiety, dissociative disorder, epilepsy and has recently been diagnosed with “Autism Spectrum Disorder”. The situation she’s now in has been described as “counter-therapeutic“: it’s contributing to her distress, dysregulation and “significantly challenging behaviours”. But there’s still no realistic plan for getting her home.

We’ve described earlier hearings in this case, starting in September 2025 when it was before HHJ Hilder)[2]. Over the course of more than 14 hearings, first before HHJ Hilder and then before Mrs Justice Lieven, these experienced and hands-on judges have failed to achieve what all parties agree should happen: P’s safe return home. It seems that even repeated robust judicial intervention cannot make a dysfunctional system provide the necessary care.

The allegations against The G Agency, which has been providing care for P in hospital, are serious.  Evidence includes video footage said to show P being pulled or dragged through a doorway by her ankles while saying “ow”, photographs of P’s unexplained bruises, CCTV coverage of an incident of restraint (also witnessed in person by P’s legal representative), and more. The Official Solicitor, acting for P, has expressed “immense concern that … despite the many legal teams involved in these proceedings, and the oversight of the court, [P] has been subjected to wholly inappropriate care and sustained multiple injuries”. 

The plan was for this same care agency to support P after her discharge home. That’s now, obviously, off the table – yet without an alternative care package P cannot leave hospital. As Lieven J put it in the course of the most recent hearing: “P is continuing to receive what we consider to be abusive care – and the court is in the extraordinary position of authorising that as being in her best interests because there is nothing else available”.

This case exposes the limits of the Court of Protection’s powers when the problem is not disagreement about what should happen, but the apparent absence of a safe and workable way to make it happen. More than a year after P became fit for discharge, and despite repeated judicial intervention, she remains in hospital where she has been exposed to inappropriate and ”abusive” care.

This blog will:

(1) Recap on the delays in getting P home earlier in the proceedings, before the July 2026 hearing: first, the failure to comply with court orders to produce an eating and drinking plan; then the “terrible state” of P’s home; and finally concerns about unsuitable and possibly abusive care.

(2) Summarise key events between the hearings of July and August 2026, leading up to The G Agency’s contract being cancelled the evening before the August 2026 hearing.

(3) Describe what happened at the August 2026 hearing.

I’ll end with (4) Reflections.

1. Delays in getting P home before the July 2026 hearing

The most extensive delays in returning P home  (delays amounting to more than 10 months) arose from the ICB’s repeated failures to provide a care plan covering how P’s eating and drinking would be managed at home. Further delays in the last couple of months were occasioned by P’s home not being in a fit state for her to live in, and most recently by concerns about the quality of care provided by The G Agency – an agency which was appointed on 13th July 2026 after a previous agency had unexpectedly served notice.

Eating and drinking plan: The ICB and LA were initially directed to file a care plan by 29th July 2025, to include how P’s nutrition and hydration needs would be met on return home. They did not comply – and this was followed by (at least) three more court orders with successive deadlines (1st December 2025, 27th May 2026, and 15th June 2026) before the care plan was finally produced. Reflecting on the public bodies’ repeated failure to comply with court orders, Lieven J said (at the hearing on 5th June 2026) “I apologise to (P’s siblings), who must think that the justice system is a bit of a joke. But we have to do our best”. There is now a plan in place, plus clinicians have recently said she can go home with the NG tube in place, which makes things more straightforward. It is entirely opaque to me why a care plan the judge ordered to be produced by 29th July 2025 was delayed for such a long time.

By the hearing of 29th June 2026, a plan was in place for P to go home in the week beginning 27th July 2026. But given the history of the case, the judge was clearly sceptical about the likelihood of this happening without judicial “micromanagement” (her term).  She referred to “a distinct feeling that the moment I’m off the job things might not happen” and wanted to know the “granular detail” of the proposed arrangements to check that the parties were not merely saying they agreed “for the sake of the hearing” before “reneging later”. A timetable was agreed, and a further hearing listed for 28th July 2026, with the expectation that P would be discharged home on 30th or 31st July 2026. “For the next four weeks”, said the judge, “everyone’s focus should be on getting P out of hospital”.

At the hearing on 28th July 2026, at the beginning of the week when P’s discharge home should (finally) have taken place, everything began to unravel, with two key concerns: the state of P’s home and the quality of care. 

The state of P’s home: Given the indication that P might be going home soon, P’s siblings had gone to her bungalow (purchased for P with NHS England funding) the day after the 29th June hearing and they reported that it was in a “terrible state” and not fit for her to return to. Problems included: dishes with mould in the dishwasher, swarms of dead bugs everywhere, filthy floors, out-of-date food in the cupboards, broken office furniture abandoned by a previous care agency, none of the hoists and slings had been serviced, the sensory room needed maintenance, and the broken footrest on the wheely recliner chair needed to be repaired. Bags from McDonalds and cups from Starbucks had been left all over the office room (used by staff – none of this was P’s) rather than binned and disposed of, and the office carpet was heavily marked. Agency staff (they said) had “shown a real lack of respect to [P]’s home and her possessions”.  The two siblings had started tidying up but it was beyond what they could reasonably be expected to achieve without professional help.

Concerns about carers:  P is being provided with additional care and support in hospital by a care agency (“The G Agency”) commissioned by the Trust responsible for the operation of the hospital in which P is cared for[3], as the hospital staff were not considered able to meet P’s needs.  There had been two previous care agencies in this role, both of which had given notice. By this point there were also serious concerns from the Official Solicitor and from P’s siblings about the standard of care provided by The G Agency. They’d been caring for P in hospital since 13th July, and the plan was that they would care for her at home.  P had told her legal representative (from Irwin Mitchell) that she did not want to go home with The G Agency’s staff: she did not feel safe with them, and she used the words “abuser” and “attacker”.  It was reported that The G Agency carers had not learned Makaton (as directed by the court), so could not communicate with P,  which was a known ‘trigger’ for her to become dysregulated – which in turn meant that she was then restrained.  Carers were also using known triggers such as saying that P “has capacity”, that the police will be called, and hat she has injured staff.  According to the siblings: “P currently has a staff team that cannot communicate with her and who are restraining her physically and chemically frequently. They do not appear to be taking a trauma informed approach, or understand that a trauma informed approach is needed. P is calling [her sister] 50 to 100 times a day to say she is unhappy/scared” and that she “does not want to go back to the bungalow with The G Agency‘”.

An incident of allegedly inappropriate restraint had been witnessed by P’s legal representative (from Irwin Mitchell) when she visited her client on 20th July 2026. During a conversation about returning home with The G Agency, P became upset. She lowered herself from the bed onto the floor, and was shouting, but not self-harming or causing a risk to anyone else. Three carers entered the room and, without asking the legal representative what was happening, they physically restrained P. There were no attempts at de-escalation and no other options for managing the situation were discussed or considered. According to the OS, “There was no immediate risk of harm that warranted three people holding her down. It was the intervention by staff that caused her to become agitated and to hit out“.

On the evidence currently available, the Official Solicitor considers that on 20th July 2026, “known triggers were not avoided; de-escalation strategies were not followed; there was no immediate risk of harm to [P]; physical restraint was not used as a last resort and was not proportionate. A safeguarding referral has been made by Irwin Mitchell to the relevant safeguarding body, which is Essex County Council”. The OS also notes that the care record provided for 20th July “contains no reference to the use of physical restraint at all which is extremely concerning” and a violation of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, regulation 17, which is enforced by the Care Quality Commission.

The incident of 20th July had been recorded on CCTV. On 22nd July, P’s sister noted new bruises and a new graze on P’s chest which was bleeding.  These concerns superseded the agenda for the Round Table Meeting, convened on 22nd July 2026 to discuss final steps for getting P home.  Professionals from the ICB and LA then reviewed 3 hours of CCTV footage covering the visit on 20th July 2026, along with the attendance note, the daily care records and statements from a carer and a nurse employed by The G Agency who were involved in the use of restraint. They took the position that, on balance, the degree of restraint used was proportionate (though the LA’s legal representatives had not had the opportunity to review it yet).  They noted that the final and independent determination of whether P has been subject to abuse will rest with the safeguarding authority, Essex County Council. In the meantime, they suggested the need for “a communication protocol so that any family concerns about the care being delivered can be sent to senior managers, as opposed to being raised with individual carers directly”.

At the 28th July 2026 hearing, all this was reported to the judge.  P’s siblings described the new care providers as “the worst agency they’ve been involved with” and said that P was begging them to stop her having to go home with them.  The Official Solicitor said she was “gravely concerned following that visit that [The G Agency staff] are unable to meet P’s needs and provide appropriate care to her, and that their use of physical restraint on [P] on [20th July 2026] was unlawful”. She was not optimistic that P would return home as planned but was “at a loss” to suggest how best to proceed: “After at least 14 court hearings, many more orders having been made on the papers, multiple expert reports obtained and a costs order made on the Official Solicitor’s application against two of the statutory bodies, the Official Solicitor is somewhat at a loss as to what else can be done to get [P] home with an appropriate package of support”.

Although, at the July hearing the judge was sympathetic to concerns from both the Official Solicitor and the siblings about the care company, she wanted no more delay: “They are the only carers prepared to work with P …  if we start looking for new carers, we’ll be back to square one”. The judge (described by one observer as “furious”) demanded “a remorseless focus on getting P out of hospital” and authorised care and restrictions to continue with The G Agency. 

At the hearing a month later, when the care package had irretrievably broken down, the OS was to say, grimly, to the judge: “It gives me no pleasure to say ‘I told you so’”.

2. Between the hearings of 28th July and 21st August 2026

Events moved quickly over the (almost) four weeks between these two hearings.  I have pieced together what happened from what is recorded in the parties’ position statements for the 21st August 2026 hearing.

2.1 A judicial meeting (5th August 2026) followed by an application for the judge to recuse herself.

In a very unusual move for a judge in this situation, Lieven J pursued an earlier proposal to chair a meeting outside of court to resolve concerns about the care package. This meeting took place on 5th August 2026 and resulted in a plan to discharge P to her bungalow on 14th September 2026, with care provided by The G Agency.

Discussions also took place about the possibility of appointing a “Super Care Coordinator” (a named consultant clinical psychologist) who would be responsible for overviewing and managing the situation going forward. The view of the Official Solicitor was that this is essential since “it has been conclusively demonstrated in the course of these proceedings that the existing MDT [Multi Disciplinary Team] are not capable of getting [P] home with a sustainable care package in place”.

The proposal for a “Super Care Coordinator” was opposed by the public bodies, who consider that they “can and should continue to work collaboratively to manage P’s case moving forward”. According to the local authority, “adding another layer of management is unnecessary and may cause further delay”. It’s not within the powers of the judge to order this appointment.

After this meeting (and a subsequent Round Table Meeting), the local authority submitted an application that Lieven J should recuse herself, arguing that the judicial meeting was analogous to a Financial Dispute Resolution appointment in family proceedings or a dispute resolution hearing under the Property and Affairs Pathway, so that it was not appropriate for her to continue to act as a judge in the case. They also claimed that some of what Lieven J said in that meeting indicated “bias” and that the judge had “formed a concluded view on the central issues in dispute”.  One example (it’s taken from notes made during the meeting and quoted by the siblings who opposed the recusal application) is this series of questions from the judge:

“How is [The G Agency] going to check implementation of training and check it’s being absorbed. You don’t grab ankles of someone who has autism and no sense from the video of people who are autism and trauma informed. What are [The G Agency] going to do to make sure training is absorbed and implemented. […] Everyone who watched that video would say things went wrong – mistakes happen but learn from them. [In terms of training] “one of the most useful things is to watch the video and if you watch it, there are some obvious lessons.”

The siblings submitted that “these comments do no more than express concern about one interaction caught on video and show the judge asking for information about training and communication in order to facilitate a discharge with The G Care Agency”. 

In the event, the application for the judge to recuse herself was withdrawn before the next hearing (I don’t know why, but I assume because the agency in relation to which the judge had allegedly displayed bias was now out of the picture).

2.2 Decision made to temporarily close ward due to ‘superbug’ (10th August 2026)

A ‘super-bug’ outbreak (Carbapenemase-Producing Enterobacterales (CPE)) on the ward means that all patients (except P) are in the process of being discharged so that a full deep clean can be done. P has tested positive for CPE (although she’s asymptomatic) but this means she cannot be transferred to another ward due to the risk of spreading the infection to other parts of the hospital. According to the ICB and Trust, closure of the ward means that more than 30 beds cannot be used and the Trust responsible for the operation of the hospital says this will have a significant impact on patients and presents operational difficulties for them and for the local ambulance service: “if the ward is not able to reopen for an extended period of time whilst discharge planning for [P] continues, this will leave the Trust in an extremely unsafe position”.

2.3 Round Table Meeting (17th August 2026) and a second incident of alleged abuse

At the Round Table Meeting held on 17th August 2026, there were further concerns about what the Official Solicitor and P’s siblings considered could constitute “abusive” treatment of P from the carers. Nonetheless (according to the OS), “none of the statutory bodies were concerned that there was an immediate threat to [P’s] welfare“.

The video of the “ankle-pulling” incident from the previous Friday did not become available to the parties until after this meeting and there was a discrepancy in reports about what had happened. It was said on behalf of The G Agency that carers were only holding P’s legs down, not pulling or moving her.

The video was shared the following day, and the OS says that it “shows [P] being pulled by the ankles through a doorway while the carer pulling her says ‘come’. [P] calls out ‘ow’ when the pulling starts“. The carers’ notes that seem to correspond to the video record P’s “very challenging, physically aggressive behaviour towards all staff on duty this morning“, say that she “rolled towards the door” and that she then “took videos whilst she screamed to indicate she was being hurt, later told staff I’ve sent it to tiktok and my Sister During this escalation [P] was held in safe hold to maintain her safety“. There is no indication in the notes that she was being “pulled” or “dragged” by her ankles – but this seems (from what the parties now say) to have been readily apparent from the video-recording.

On the basis of what was said at the meeting, and without seeing this video, the ICB and Trust indicated that in view of the extensive work done to date to provide training and support to the care team and to ensure P’s bungalow was ready, it was appropriate to continue to work towards discharge on 14th September 2026 with The G Agency. They acknowledged the safeguarding concerns raised by the OS and the siblings but took the position that the safeguarding investigation (with Essex County Council) needed to take its course.

This was opposed by both the Official Solicitor and by the siblings.

The day after this Round Table Meeting (18th August 2026), the Official Solicitor filed an application for an urgent hearing to address her serious concerns about P’s welfare. She asked for a different judge (not Lieven J) since “arguments about bias and recusal are an unhelpful distraction which will delay the court focusing on the crucial question of whether [The G Agency] can continue to provide care to [P]“. In a position statement prepared two days later (20th August 2026) for the following day’s hearing, she said she was “appalled that the statutory bodies’ response was to say they needed to see more evidence, take statements from care staff, and let the safeguarding process play out, on the basis there was not enough evidence to suggest that [The G Agency staff] should not be providing care to [P]”.

The Official Solicitor’s position was that The G Agency “are providing care to [P] which is not safe, is not in accordance with court-authorised care plans, is not in her best interests, and which infringes her rights under Articles 3 and 8 ECHR”.  Accepting that P does exhibit challenging behaviour and that caring for her is not easy, the OS points out that, despite this, “previous care agencies have been able to provide care that did not result in her sustaining bruising injuries and being physically restrained in this manner“. The OS also points to multiple other deficiencies with The G Agency that have arisen in the context of trying to improve the care they provide. These include: failure to provide details of their proposed training, no plan for staff reflection and learning, and no Positive Behaviour Support (PBS) plan designed to avoid situations where restraint or other physical intervention may be required, and to support the use of de-escalation strategies where avoidance has not been successful, and ensure the safe use of restraint. The OS also expresses her concern that although the ICB say that they review the care provided to P, this review appears to depend on The G Agency sending them accurate records “which as has been demonstrated by the disclosure in these proceedings, is not happening“.

The siblings refer to manifold failings of the carers (manual handling which is not in line with any care plan and which has injured their sister; over reliance on restraint, both physical and chemical; failure to engage positively with her; using known triggers; and failing to learn Makaton): they had “lost all faith that the G care agency might change their approach“. Their view was that sending P home with The G Agency would “set P up to fail so that readmission to hospital is inevitable, leading to further deterioration and institutionalisation”.

2.4 The G Agency’s contract is terminated (evening of 20th August 2026)

The G Agency informed the ICB (on 20th August 2026) of their decision to suspend 6 members of staff. In the light of this, and on the basis of their own review of CCTV footage, the ICB decided to terminate their contract with the company and served notice that evening (Thursday 20th August 2026).

The ICB then brought in the Chief Nurse and Head of Safeguarding to provide oversight and input to the care team, and said they were continuing to “actively monitor and respond to the situation as it evolves”.  They were liaising with the LA urgently to consider alternative care arrangements: it was possible that the previous care agency might step into bridge the gap (albeit only while P remains in hospital). They also said that spot checks would be made overnight by ward staff, some of whom are already trained to work with P and others of whom would  be shown a training video to help them. They now (finally) recognised that the allegations (and evidence) of abuse meant that the planned move of 14th September 2026 could no longer take place. They were urgently seeking an alternative home care provider.

2.5 Progress on making P’s home safe and habitable

More positively, P’s bungalow has been professionally deep-cleaned and repairs have been carried out. The plan is to install CCTV in early October. There’s some dispute about the use of body-worn cameras in the meantime, and also subsequently in areas not covered by CCTV (e.g. the bathroom) but it wasn’t suggested that this would delay P’s move.

3. Hearing of 21st August 2026

This was a remote hearing that lasted 35 minutes, with the following parties:

  • NHS Norfolk and Suffolk Integrated Care Board and Essex Partnership University NHS Foundation Trust (as joint applicants) (ICB and Trust) represented by Claire Watson, Serjeants’ Inn Chambers. (The ICB and local authority are jointly responsible for commissioning P’s s.117 MHA 1983 aftercare package.)
  • P’s siblings represented by Anna Bicarregui, 39 Essex Chambers (acting pro bono)
  • Suffolk County Council (the local authority) represented by Sophy Miles, Doughty Street Chambers
  • The protected party (P) by her litigation friend the Official Solicitor (OS) represented by Victoria Butler-Cole KC, 39 Essex Chambers
  • Hertfordshire Partnership NHS Foundation Trust (HPFT) – acts as P’s care coordinator and is  responsible for community learning disability services in the locality of P’s home but are “not responsible for commissioning any part of P’s package of care and support, nor for the monitoring of its quality”

The judge had slotted in this hearing as an urgent matter while she was on vacation, beause at the last hearing she’d anticipated being able to authorise P’s return home.  Obviously, that wasn’t now going to be possible since the contract with The G Agency had been terminated the evening before and no alternative care team had yet been sourced. 

The judge opened the hearing by saying: “The reason for urgency of this hearing was to get P home in a couple of weeks time. That’s not going to happen because we’ve got to find a new care provider. So, I’m not really sure what there is for me to decide today”. She also noted that the application for her to recuse herself had been withdrawn, so that wasn’t something she needed to deal with.

The judge then addressed the application from the Official Solicitor for appointment of a “Super Care Coordinator” – the named consultant clinical psychologist – and for his team to step in to support a different care agency as an urgent interim measure. She said: “I appreciate there’s an argument about whether another person should be appointed to coordinate care. I’m not convinced that’s a matter I can- (she breaks off and restarts) I think that’s an NHS internal matter.  It is, to put it mildly, disappointing, Ms Watson [counsel for the ICB] that the care coordinator hasn’t engaged with P and that P won’t engage with the mental health nurse”.  (Later in the hearing the judge said: “of twenty-four people paid by the public purse, only one of them had met P”, adding “it shocks me beyond belief”.)

The Official Solicitor explained why the proposal to appoint a “Super Care Coordinator” was important:

OS: There is more than enough evidence that carrying on as we are is not working. It’s been a complete failure.

Judge: No, that there is a complete failure is clear. I think that’s right as a matter of law. So, is there anything for me, in my appropriate jurisdiction, to do today?

OS: It gives me no pleasure to say ‘I told you so’ at this hearing.

Judge: No, no, hands up!  It’s extraordinary we’re still in this position. P is continuing to receive what we consider to be abusive care – and the court is in the extraordinary position of authorising that as being in her best interests because there is nothing else available. And now P has- the entire ward has an infection. There’s nothing I can do about that. If I were the hospital, I would start possession proceedings. The hospital has been extraordinarily compliant […]. I think this case is moving out of the COP and into the administrative court.

There was some discussion with counsel for the ICB about whether P should be moved to a mental health unit as an interim measure. The judge was clear that she doesn’t think it’s in P’s best interests to be detained under the Mental Health Act and placed in a psychiatric hospital but she did entertain the possibility that “carers attuned to Ps needs might be a better option than [The G Agency staff]”.  Counsel for P’s siblings conveyed their strong opposition to that possibility, and the judge replied: “I urge your clients not to turn your faces against it completely. She will have to move out of where she is right now because of the infection. I urge them not to turn against it irrevocably before they’ve even gone to have a look”. This is an indication of how bad things have become at the hospital, since at a previous hearing Lieven J had said that a psychiatric admission would be “very counter therapeutic”, and that she feared that if P were to be admitted to a psychiatric hospital, “it may be a very long time till we can get her out again”.[4] It’s a significant turn-around that she’s now asking the siblings to give serious consideration to a psychiatric admission.

When the judge asked whether there was “any point in listing a hearing for the second half of September”, when she’s back from holiday, the OS thought that would be useful so as to get “something from statutory bodies as to what their medium-term proposal is. By then there will have to have been some proposal made about who is going to look after P and what’s going to happen”.

The next hearing is to be listed before Mrs Justice Lieven at 3.30pm on 15th September 2026, for one hour – and the judge proposes also to deal with a costs application from the OS if there is one at that hearing. Given the relatively short timescale, the September hearing is very unlikely to be the final hearing in this case – so, as Mrs Justice Lieven has recently been appointed as a new Court of Appeal judge, the final determination of where P goes next and the arrangements for her care will rest with a different judge, possibly (her name was mentioned in the hearing) the COP Vice President, Mrs Justice Theis.

The judge ended the hearing by saying: “I hope things get better. I struggle to see them getting worse at the moment”.

4. Reflections

It’s been a sobering experience to follow this case and to witness the dismaying series of delays, and now the alleged abuse, affecting a vulnerable woman.  This sequence of events occurred despite devoted and highly efficient siblings advocating on her behalf, despite agreement between the parties that she should be discharged from hospital, and despite the efforts of two very experienced senior judges over the course of almost a year. It’s self-evidently a systems failure of spectacular proportions. I wish I could say it was “unbelievable” or a “one off”, but most of us with relatives enmeshed in the health and social care system find it only too familiar.[5]

The most shocking aspect of what has happened is (for me) the decision by the judge to continue to authorise The G Agency to care for P following the hearing of 28th July 2026, at which point, on the basis of the Position Statements I’ve seen from that hearing, there were sufficient “red flags” indicating that the care was (at best) inadequate and that P should not be discharged home with those carers in place. Of course, it is easier to see this with the benefit of hindsight, given the additional evidence of harm to P from The G Agency carers after 28th July 2026.  I do understand the judge’s “remorseless focus” on the need to get P out of hospital promptly (which required an admittedly inadequate care team to remain in place), especially with the possibility of detention under the Mental Health Act in prospect, as P became increasingly dysregulated in hospital[6]. But by the hearing of 28th July 2026, and again at the time of the judicial meeting on 5th August 2026, the serious problems with The G Agency were very apparent, and it’s not surprising that Lieven J’s hope that they could be fixed by further training failed to materialise.  Instead, the court left P exposed to potential further abuse. As a result, by the hearing of 21st August 2026, the judge seemed to be advocating detention under the Mental Health Act as possibly the least worst option for P, despite have previously expressed concern that this would be “very counter therapeutic” [7]

As the Official Solicitor points out, there have been a multitude of reports and investigations raising concerns that reflect what seems to have happened here: undignified and inhumane care; treating people not as individuals but as a collection of negative behaviours; not listening to disabled people and their families when they raise concerns; and not acting promptly when red flags are raised.[8]  On this occasion, these systemic failures occurred while P’s welfare was actively being overseen by Mrs Justice Lieven – on her watch.

Finally, some reflections on ‘deprivation of liberty’ in this case.

At the hearing on 29th June 2026, the court determined on an interim basis that P is deprived of her liberty by virtue of her care arrangements in hospital, and authorised this pursuant to s.16(2) and s.4A(3) MCA 2005.  At the hearing, in response to the application from the ICB and Trust, Lieven J said she was “not going to make a ruling on the applicability or otherwise of the Supreme Court judgment to the facts of this case”.  Instead, given the situation at that  point, which included the risk of P’s detention under the Mental Health Act, she considered it “necessary and proportionate” for P to be deprived of her liberty in hospital on an interim basis. She added: “I’m not going any further than that”. This DOLS authorisation expired on 21st August 2026 and I think (though I haven’t seen it recorded anywhere) that Lieven J must have approved its renewal.[9]

The judge had earlier stated (in the course of a hearing) that she hoped, once a care and discharge plan had been approved, to make a determination as to whether or not the conditions of P’s care and residence in the community were such as to constitute ‘deprivation of liberty’, and she commented: “It would be a perfect case for me to say it’s just not a deprivation of liberty given the decision of the Supreme Court” [i.e. in AGNI,].  The judge’s position on ‘deprivation of liberty’ is well known since she has  famously taken an approach to deprivation of liberty (in [2024] EWHC 1690 (Fam)) that was not consistent with the Article 5 framework established in Cheshire West and her judgment on that matter was successfully appealed. In the (unlikely) event that new carers are in place so that P can be discharged home at the next hearing before Lieven J on 15th September 2026, it seems very likely that she will find (in line with AGNI) that there is no ’deprivation of liberty’ for P (despite the CCTV, restraint etc).

The ICB takes a different view: “In the event the court determines that it remains in [P]’s  best interests to be discharged back home, the ICB considers that [P] is likely to be deprived of her liberty that will require the authorisation of the court under the MCA 2005, particularly given the level of restrictions in place, the continuous nature of supervision and the likelihood that she will raise objections to the care being delivered.”

The Official Solicitor “has not formed a concluded view as to whether P’s care at home engages Article 5” but does note that a care plan permitting three or four staff to restrain P on the floor, and the use of sedating medication, “may be closer to the paradigmatic police cell … than would ordinarily be the case with a package of care in a person’s own home”.  Like many advocates for P post-AGNI, she turned from Article 5 to Article 8 and is: “quite sure that [P’]s Article 8 rights are engaged by the plans for her support, and the method of their implementation”. She “does not consider that the point has been reached when this court could sign off on her care arrangements as being in her best interests and conclude the proceedings”.

That last point, at least, is surely indisputable.

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)

END NOTES

[1] “CPE” stands for Carbapenemase-Producing Enterobacterales – a ‘superbug’ identified as an increasing threat to public health internationally. There’s more information about the challenges associated with outbreaks of CPE in this (open access) scoping review: Healthcare workers’ experiences of caring for patients colonized with carbapenemase-producing Enterobacterales (CPE) in an acute hospital setting – a scoping review. Recent outbreaks in England are referenced in (for example) a description of the control measures in place in a cardiothoracic unit at the Royal Papworth Hospital in Cambridgeshire in June 2024 and a report from the Chief Medical Officer (2025) of an outbreak at a hospital in Greater Manchester.

[2] There are blog contributions about earlier hearings in this case from five different public observers (Kim Dodd, Amanda Hill, Elissa Novak, Sandra Preston, and Tim Sugden) as listed below. I’ve drawn on them (and in some cases the observers’ notes) in summarising events prior to the hearing of 21st August 2026.  I am also grateful to the judge for ordering disclosure of the parties’ position statements (opposed, as usual, by the Official Solicitor) for the hearings of 28th July 2026 and 21st August 2026 which have greatly assisted with transparency. I requested the “Gardner documents” as an alternative (or addition) but they weren’t mentioned in court and I suspect they had not been prepared. The judge heard submissions and, in the particular circumstances of the case, considered disclosure of the position statements to be necessary for observers to understand the proceedings.  Redactions were considered and not approved by the judge. Where I’ve used quotations from what was said in the hearings, these are based on contemporaneous notes (mine, or other observers’) and are as accurate as we could make them but are unlikely to be absolutely verbatim. Here’s a list of our previous blog posts about this case.

[3] The name of the hospital is protected by the Transparency Order (because it’s where P currently resides and receives care) so I’ve avoided naming the Trust. They are not a party, although they have been involved in ongoing Round Table Meetings and a representative has attended court hearings.

[4] As quoted in a blog post about the hearing on 29th June 2026 The ‘fit for discharge’ story continues: 10 months on 

[5] See Reducing restrictions for a person deprived of his liberty: internet use, access to services and ensuring appropriate support  in which Jenny Kitzinger says: “After my own sister, Polly Kitzinger, was brain injured in a car crash, I quickly realised that there were not just barriers to service provision, but also a maze of false promises, false starts and delays. As a family, we certainly learned about the need for persistence and attention to detail if Polly’s needs were to be met …” The case reported in Jenny’s blog was heard by HHJ Hilder, who also dealt with earlier proceedings in the ‘Fit to Discharge’ case reported in this blog post. Like Lieven J, she strives to achieve the best for protected parties and is aware of the “micro-management” (Lieven’s term) that is often required. The blog comments on HHJ’s “knowledge of how a person might fall between the gaps of service provision, her obvious awareness about how delays can occur, and her sheer attention to detail to ensure her order would be as effective as possible“. This approach is characteristic of both HHJ Hilder and Lieven J which make it doubly alarming that these two judges have been defeated in their efforts to ensure P’s undisputed best interests (discharge home) for over a year.

[6] The latest data recorded 2,130 people with a learning disability and autistic people in inpatient services.  Of these, 1,030 (49%) had been there for more than two years, and 320 for more than ten years. In 2023, an investigation by The Independent revealed that 27-year-old Nicholas Thornton had been trapped in inappropriate settings, including psychiatric hospitals, for a decade, because NHS and social care services were unable to fund a place that could meet his needs in the community. Mr Thornton was finally granted a full community care package in 2024 and his own home, following the exposé. (“Fears patients with learning disabilities ‘will remain trapped in hospitals’ despite Mental Health Act changes”, The Independent, 19th December 2025)

[7] As quoted in a blog post about the hearing on 29th June 2026: The ‘fit for discharge’ story continues: 10 months on 

[8] Out of sight – who cares (CQC, 2020); Baroness Hollins’ report My Heart Breaks 2023; Transforming Care: A national response to Winterbourne View hospital (DHSC 2013)

[9] The potential value to P of having the protection of DOLS in hospital is illustrated by the Official Solicitor’s observation that deprivation of liberty in hospital “requires that [P] is provided with ‘a suitable medical environment accompanied by real therapeutic measures with a view to preparing them for eventual release’, Rooman v Belgium [2020] MHLR 250”.  She observes that there is still no proposal for P to receive individual therapy while she is deprived of her liberty in hospital and that the care being provided by The G Agency is “counter-therapeutic”.

Reducing restrictions for a person deprived of his liberty: internet use, access to services and ensuring appropriate support

By Jenny Kitzinger, 26th August 2026

Since the AGNI judgment I’ve closely followed developments around deprivation of liberty and I’ve written about what changes in the meaning of “deprivation of liberty” might mean for my brain injured sister, Polly. So, when I found myself near London and with an unexpected free morning, I was pleased to discover that the lists showed two Court of Protection hearings about deprivation of liberty at First Avenue House, the London headquarters for the court. Both hearings were listed as public, and both were for one hour before Senior Judge Hilder.

This blog is about the 11.30 am hearing on 17th August 2026 (COP 20015410).

Transparency

I turned up at First Avenue House with no notice at all (because I was not sure I trusted my train to get me there on time), but a member of the court staff was very welcoming, provided printed copies of the Transparency Orders for both hearings, and showed me to the waiting room. He also kept me informed about when the hearings would start (both a little late) which meant I could then catch my breath. Knowing I was now in the right place and on time to attend, I also emailed requesting the ‘Gardner documents’[1] or position statements, to back up my verbal requests at the desk.

Once in court, HHJ Hilde asked if I’d received the Transparency Order and whether I wanted any other information and then asked the barristers about the availability of the relevant documents – none of which were easily produceable for me, so the judge simply provided a succinct verbal summary, which was invaluable in allowing me to follow proceedings.

Overall, this was also a very positive experience for me as an observer. Although some judges can treat our presence as disruptive or time-consuming, Senior Judge Hilder made it all seem easy to accommodate me in court. She is an exceptionally clear communicator, and her clerk is welcoming and well versed in the principles and practice of transparency.

Background to the case

The protected party [P] in this case is a 25-year-old man with ADHD, mild intellectual impairment and autism.

He currently resides in a supported living placement (with one other resident, and a care team). He has 10 hours of one-to-one supervision during the day as well as waking night supervision. There are locked doors and windows, CTV motion censors in communal areas, and a perimeter fence. In addition, due to having committed a criminal offence, he is under probation restrictions which mean he cannot go out by himself.

P also has no access to internet on his phone: it is not a ‘smart phone’, and is only really functional for calls and texts. He is supervised when accessing the internet using a device other than a phone.

The hearing was focussed on his residence and care arrangements – and specifically, on trying to progress determination of capacity and decide what restrictions should be continued and where a trial of reduction in some restrictions might be in his best interests, if he could be provided with specialist support.

He was represented, via the Official Solicitor, by Victoria Butler-Cole KC who joined online.

One of his mothers (they’d adopted him when he was a toddler) was present in court. I think she was a litigant in person.

The London Borough of Haringey was represented by Joanna Thom  

The hearing

The barrister for the Local Authority (the London Borough of Haringey) informed the judge that the expert report prepared for the court found that P lacks capacity in relation to decisions about legal proceedings, care, and use of social media, but that he does have capacity to engage in sexual relations.

His mother clarified that she agreed he had capacity to engage in sex but believed he needed support around knowing the age of his sexual partner and knowing “how you have a relationship”.

Pre-discussions between all parties had resulted in an agreed draft order placed before the judge which explicitly stated that he has capacity for sexual relations but lacks capacity to make decisions “about with whom he should have contact”[2]

All parties seemed to agree that the main restrictions are in his best interests, at least for the moment, with the exception that there was discussion about how to increase his access to the internet.

The judge had spoken with him that morning (a “polite and delightful young man”) and, despite the objective restrictions on him, he’d told her that his experience of where he was living now was going “brilliantly”. It is “homely” and he feels warm and safe there, and he accepts the restrictions.

He had, however, told her he was very unhappy about having a what he called a “brick phone” without internet access: – “he didn’t even want to show it to me as he is embarrassed by it”.

He can’t make video calls or use it to organise football or cinema tickets or order take aways, nor – he’d explained – could he use it to address problems with his universal credit. The judge said she’d talked to him about ‘Cyber Spider’, a safeguarding service supporting safe internet use, and he was in principle okay with having the Cyber Spider App put on a phone with internet access.  She added: “I said his phone wouldn’t change overnight, but we would try to sort it”.

It soon became clear that when Senior Judge Hilder says she will try to get something sorted she is determined to do so, and leaves little room for error or delay. A significant part of this hearing was used to ensure that initial efforts to reduce P’s restrictions in this area would be followed through and that the order was written in a way that would support this to happen quickly.

Ms Thom for the Local Authority (the London Borough of Haringey) said that the Local Authority had agreed to commission Cyber Spider, and was simply awaiting confirmation of the time frame. Some judges might have left it there. Not Senior Judge Hilder. The conversation then went like this:

Judge: Be more specific please in the order about when Cyber Spider will be available

Ms Thom [Local Authority]: The request had been made.

Judge: Has it been sent to Cyber Spider?

Ms Thom [Local Authority]: There’s been an agreement they’ll be commissioned, but the invoice needs to be paid in advance.

Judge: Specify in the order a date by which that invoice will be paid.

It was agreed to specify (by way of recital) the date of 21st August 2026. The judge then asked when a Cyber Spider assessor would talk to P and how long the assessment would take. Once she had this information she wanted at date of 28th August 2026 as the assessment deadline and then turned to questions about getting P’s phone back, so the software could be installed on it.

Judge: The hardware – how will we get that?

Ms Thom [Local Authority]: His phone is currently held by the police.

Judge: How will the handset be made available. My understanding is that the police haven’t released the phone to [P], and won’t release it to either of his mothers. So there needs to be an order which allows that phone to be released.

The judge then went on to check who would give the order to the police and collect the handset (the mother said she would) and whether there was a named police liaison officer (there was). The judge suggest that the Local Authority send the order in advance to the named officer (as well as his mother taking in the paperwork), so that the police would then be ready to hand over the phone. 

Once she had checked the timetable and step-by-step process Senior Judge Hilder concluded by saying that the order should include the statement that the court was expecting the phone to be available to him, with the Cyber Spider App on it, by the 4th September 2026.

The rest of the hearing was devoted to trying to ensure appropriate support services. It was clear this had so far not been provided. Ms Butler-Cole commented that: “Currently his placement is not far short of prison if no support is being provided to reduce restrictions.”

It seemed that the Trust (North London NHS foundation Trust) had not provided support via the community ‘single point of access” mental team nor via the learning disability team – apparently partly on the grounds that this young man doesn’t have a learning disability. “But in Dr X’s report that diagnosis IS given – so we can start with that team” said Ms Butler-Cole. The Local Authority was going to send the medical report to the Trust. The judge asked for the name of the person in the Trust who would receive the report, and added “By the time the order is submitted I’d like that specified”. 

The Official Solicitor was clearly very concerned about what had happened.  Their position was that the judge should order the NHS Trust to say if he was not being accepted by either the mental health or the learning disability team and, if so, to explain why not. She requested disclosure of correspondence regarding attempts to get referrals. The judge agreed and stated that disclosure should be of correspondence from 25th April 2025 onwards (the date when these legal proceedings first started). A deadline was set for 4pm on 1st September 2026, by which time the Trust must disclose what referrals they’d received, the outcomes of those referrals, and specify how they proposed access to the support he needs going forward.

If there were to be no acceptable response from the Trust, a hearing would take place on 18th September 2026, with the Trust joined as third respondent, and attendance required at that hearing. Provision was made for vacating the hearing if the Trust gave an acceptable response.

Reflections

The family, Local Authority and OS seemed to be working closely together to try to ensure that restrictions could be reduced, and to ensure that the Trust would provide appropriate support in future.

Obviously, it should not take a court case to resolve such situations, but sometimes it seems to be necessary. Families frequently report having to fight for support for vulnerable children and adults and how difficult it can be to engage the appropriate services. After my own sister, Polly Kitzinger, was brain injured in a car crash, I quickly realised that there were not just barriers to service provision, but also a maze of false promises, false starts and delays. As a family, we certainly learned about the need for persistence and attention to detail if Polly’s needs were to be met and some professionals reacted by describing us as ‘demanding’, ‘obsessive’ or ‘failing to trust’ the collaborative process. I’ve sometimes been seen as confrontational for demanding the name of a responsible individual to contact, for writing ‘too many’ letters as I tried to follow up on failures to act, or, for example, for my eventual insistence that letters were signed for on arrival so there’d be proof they’d been received.

Senior Judge Hilder (and the OS) seemed very familiar with how difficult it can be to ensure that organisations follow through on their responsibility and how easily a timetable can slip. I was interested at one point to hear Senior Judge Hilder apologise to Ms Butler-Cole for being “dictatorial” on a particular point that she was going to put in the order. The very choice of the adjective ‘dictatorial’ reflects Senior Judge Hilder’s authority to, quite literally, dictate the contents of the court order – authority lacking for a sister, even one (like me) who is a court-appointed welfare deputy, trying to advocate for appropriate levels of service provision.

Failing to provide appropriate support to vulnerable people has huge costs for the individual, those around them, wider society and for the very services that are so over-stretched. These costs in some cases include the demands placed on the Court of Protection and (in this case) the litigation costs for the Local Authority and the OS. There should be a more efficient way of dealing with the problems.

Senior Judge Hilder should not have to make detailed orders to ensure that protected parties have access to appropriate services – but I’m glad she does. She was very much on top of the material in this case, and in control of her court room. I admire her obvious commitment to understanding and addressing the problems faced by a particular individual, her knowledge of how a person might fall between the gaps of service provision, her obvious awareness about how delays can occur, and her sheer attention to detail to ensure her order would be as effective as possible.

I do hope the Trust gives an acceptable response to SJ Hilder’s order and that services are now put in place. I hope that the hearing on the 18th September 2026 can be vacated – but I won’t hold my breath.

Jenny Kitzinger is co-director of the Coma & Disorders of Consciousness Research Centre and Emeritus Professor at Cardiff University. She has developed an online training course on law and ethics around PDoC. She can be found on LinkedIn here and is on BlueSky as @JennyKitzinger. She is also Health and Welfare Deputy for her sister, Polly Kitzinger.

[1] The ‘Gardner documents’ are (a) the case summary (b) a chronology of relevant events and (c) the issues for determination at the hearing. See: A statement on the Court of Appeal’s judgment in Re Gardner (Deceased) (Court of Protection: Disclosure of Position Statements).

[2] For more on capacity for contact and how this is different from capacity for sex see:  “When capacity for contact and sex do not align: Pragmatic decisions and judicial work-arounds”. https://openjusticecourtofprotection.org/2022/10/24/when-capacity-for-contact-and-sex-do-not-align-pragmatic-decisions-and-judicial-work-arounds/

When compliance is not consent: Applying AGNI when P is sedated and objecting

By Maria Maier, 21st August 2026

What if compliance with care is not the same as consent to it?

And what if the medication a person receives may itself affect their ability to object?

These questions were at the heart of a Court of Protection hearing I observed concerning P, a man living in a care home following a brain injury. The hearing (COP 13665011), before District Judge Clarke, concerned a challenge to standard Deprivation of Liberty Safeguards (DoLS) authorisations.

It gave me the opportunity to see how the Court is approaching the Supreme Court’s new, multifactorial test for deprivation of liberty following A Reference by the Attorney General for Northern Ireland (AGNI).

Observing the hearing

I sent my request to observe the hearing remotely (via MS Teams) at 9:14am and joined the link shortly before 2pm, when the hearing had been listed. At 2:04pm, the court clerk joined the call to let me know that the hearing would be slightly delayed and asked me to read the Transparency Order before the hearing began.

The hearing began at 2:14pm. District Judge Clarke asked me to turn on my camera, introduce myself to the Court and confirm that I had read and understood the Transparency Order.

The Judge explained that she could not provide the case summary, chronology or issues of determination that I had requested (in accordance with PD4B para.4.2(a)-(c) COPR 2017, the “Gardner documents”) because the Court had not received them either.

Counsel then introduced themselves. Ms Love of Garden Court Chambers appeared for P through the Accredited Legal Representative (ALR). I could not see her on the video link and, as there are two Ms Loves at Garden Court Chambers, I could not identify her further. Ms Sophie Casely, also of Garden Court Chambers, appeared for the Royal Borough of Kingston upon Thames, alongside two social workers. P’s wife and one of his two sons were also present.

The Judge then asked Ms Love to provide a brief summary of the case.

Ms Love explained that P had suffered a brain injury following a fall and was now living in a care home, where the Local Authority had authorised standard DoLS authorisations.

The proceedings had been ongoing since 2021 and began as a section 21a challenge to the authorisation of DoLS. P’s wishes and feelings had been considered, and he would prefer to return home to his family. However, all parties agreed that this was not a practical option. The stairs at the property and P’s need for 24-hour care meant that his care needs could not be met at the family home.

Alternative placements had also been considered, but everyone agreed that it was in P’s best interests to remain in his current placement.

DJ Clarke added that at the previous hearing, the Court had identified two main concerns. First, there had been no Mental Capacity Assessment or Best Interests Decision concerning the administration of covert medication. Second, there were concerns about the limited opportunities for P to socialise and engage with the community.

Since then, opportunities for social interaction had improved. District Judge Clarke emphasised that it was ultimately P’s choice whether he wished to engage; the Court would not compel him to do so.

This left one outstanding issue concerning covert medication.

When does covert medication require further scrutiny?

The prescribers had still not provided a mental capacity assessment or best interests decision concerning covert medication. DJ Clarke clarified that there was no criticism of either party for this. The Local Authority did not have the capacity to undertake the assessments, as responsibility lay with the prescribers or GP. However, the GP had communicated either an “unwillingness or inability” to become a party to the proceedings.

The Judge explained that there were several options available to the Court. However, the documents in the bundle stated that covert medication had not been administered for over a year. DJ Clarke continued that if covert medication were being administered on an ongoing basis, she might consider a section 49 report, which requires the NHS or Local Authority to provide expert information, or another hearing with evidence. In the circumstances, however, she questioned whether prolonging the proceedings and pursuing a section 49 report would be proportionate or necessary.

Instead, she suggested that the issue could potentially be resolved through a condition attached to the standard authorisation outlining that covert medication should not be administered without a mental capacity assessment and best interests decision.

Considering AGNI, DJ Clarke further clarified that P would likely be deprived of his liberty. The restrictions imposed upon him were strict, and it appeared unlikely that he was consenting to his arrangements. P had objected to them in the past and, even if he were not currently objecting, a number of his medications had a sedative effect which could affect whether any apparent consent was valid.

The Court adjourned for 15 minutes to allow counsel to consider the position.

When the hearing resumed, counsel for the Local Authority said that they wished to take a “cautious approach”. Ms Casely submitted that there remained some lack of clarity from the GP. Although the clinical lead at the care home had stated that covert medication had not been administered for a year, this had not been independently confirmed by the social workers.

However, Counsel for the Local Authority continued, stating that the evidence suggested that P was compliant with his medication and had not been refusing it. Therefore, they felt that a condition attached to the standard authorisation requiring a capacity assessment and best interests decision before any covert medication was administered would be sufficient. Ms Casely continued that responsibility for the assessments would lie with the managing authority and agreed that the condition proposed by the Judge would be sufficient. There was also a current condition requiring medication to be reviewed every six weeks.

The Judge agreed that the condition should provide that covert medication could not be administered without a capacity assessment and best interests decision-making, that these assessments should be completed by the prescribing body, and that there should be a record of any covert medication administered.

DJ Clarke asked Ms Casely to confirm that she agreed there was no need to prolong the proceedings solely for this issue. Ms Casely agreed, saying, ‘Yes, any issues can be dealt with in the conditions and there are no live issues that require a decision from the Court’.

The Judge then turned to Ms Love, counsel for P through his ALR.

Ms Love raised concerns that the Local Authority had not considered the new AGNI test. One of the factors under the new approach is whether a person is consenting to their arrangements.

District Judge Clarke appeared confused by this submission, stating: “we know he is not consenting – that is why you are asking me to make a capacity and best interests decision about where he is”.

Ms Love explained that the Local Authority needed to speak to P and raised concerns that this had not yet happened in relation to his DoLS.

She accepted that the likelihood was that P was deprived of his liberty, but did not want the proceedings to conclude unless the Court was satisfied that the AGNI test was met, as there was insufficient up-to-date evidence.

When asked which factors were not supported by sufficient evidence, Ms Love identified P’s wishes and feelings. Her concern was that the Local Authority did not know P’s current wishes and feelings.

District Judge Clarke responded that, even if P were consenting — although nobody believed that he was — his medication and its sedative effects appeared likely to mean that any consent would not be considered valid.

Ms Love then asked for a statement to be filed that if P is deprived of his liberty that there be a COP 9. She stated, ‘I do not believe the Court could make a mental capacity assessment and best interests decision without all the relevant factors being considered’.

The Judge questioned what exactly Ms Love was seeking, emphasising that a BID was different from a deprivation of liberty.

At this point, District Judge Clarke explained to P’s family what was being considered while giving Ms Love some time to formulate her position.

The Judge explained that there were now two potential outstanding issues.

The first concerned covert medication. P’s wife confirmed that covert medication was not currently being administered, although she said that if P refused his medication, she thought it would probably be best for him to receive it covertly.

District Judge Clarke explained that P’s wife might well be right that covert medication would be in his best interests, but she was not satisfied that it should be permitted without a mental capacity and best interests decision, with input from the prescribers.

She explained that, at the previous hearing, she had not been willing to conclude the proceedings. However, having reviewed the evidence, she was now aware that P was compliant with his medication and that covert medication was not being administered.

The second issue was whether P remained deprived of his liberty under the new AGNI test.

What does AGNI change?

The Judge explained that P had previously been considered deprived of his liberty under the Cheshire West test. Following AGNI, however, the Court must apply a multifactorial approach.

The factors include the length and type of restrictions and how ordinary or normal those restrictions are. Importantly, consideration must also be given to whether the person is consenting and whether they can give valid consent for the purposes of Article 5 ECHR (as opposed to the domestic definition of consent).

The Judge explained that medication regulating a person’s emotional responses could potentially affect their ability to raise or maintain an objection to their arrangements.

This made the question of consent particularly important in P’s case.

P’s wife told the Court that P was in the best place and that the family was happy for the proceedings to conclude. She stated that P “would be horrified if something like this was going on for him”.

The family nevertheless wanted something in place to address covert medication. It did not need to be ‘urgent’, but ‘something should be put in place as we may go through another phase where P rejects his medication’.

DJ Clarke thanked the family for their input and turned to Ms Love.

Ms Love continued to express concerns about what would happen if P stopped taking his medication.

When District Judge Clarke asked what she wanted the Court to decide, Ms Love stated that covert medication should not be administered without a mental capacity assessment and best interests decision.

The Judge then asked a more fundamental question: if that was the desired outcome, what would be achieved by keeping the proceedings open?

Ms Love explained that no capacity assessment had been undertaken specifically in relation to covert medication. She said that she was not comfortable with the issue being dealt with solely by a condition and requested a section 49 report.

On the AGNI issue, she asked the Local Authority to update its DoLS paperwork to reflect the new test.

The Judge repeatedly returned to the question of proportionality. Why should the proceedings continue beyond the hearing if the remaining issues could be addressed through directions or conditions?

Ultimately, District Judge Clarke was not persuaded by Ms Love’s submissions and concluded that there was little benefit in prolonging the proceedings.

Applying the AGNI test: Is P validly consenting?

The Judge then turned to the restrictions imposed on P.

He is subject to onerous restrictions. The doors are locked, he is almost always supervised and is checked on an hourly basis. His placement is intended to be permanent and these restrictions were implemented for his care and support.

The Relevant Persons Representative (RPR) reports showed that P does not consent to his care arrangements. He wants to return to his family home and was previously resistant to the care.

The Court also considered that P is administered psychotropic medication, namely lorazepam. This was another factor indicating that he is not validly consenting to his deprivation of liberty or to the arrangements themselves.

Looking at the factors as a whole, District Judge Clarke concluded that P was deprived of his liberty.

But that did not mean the proceedings themselves needed to continue.

When is it proportionate to keep a case open?

Having concluded that P was deprived of his liberty, the Judge considered whether there was any benefit in continuing the proceedings.

She identified the impact on P, including the possibility that he might continue to believe that returning home remained an option while the proceedings remained open. She also considered the costs and resources involved, as well as the impact on the Court and P’s family.

Taking all of these factors together, she was not persuaded that there was merit in leaving the proceedings open. The remaining issues could be dealt with outside the proceedings.

The Court therefore concluded the matter, while making clear that the position would need to be reconsidered when the standard authorisation was renewed.

The Local Authority would be expected to reconsider the AGNI factors on review. If P’s RPR or family brought to its attention that P had changed his opinion and was consenting to his arrangements, this would also need to be considered.

The Judge intended the order to record the Court’s decisions and the expectation that the Local Authority consider the AGNI factors when reviewing the standard authorisation.

Reflections

As an RPR advocate, I found this a particularly interesting hearing to observe. I was able to see how a section 21A challenge can develop beyond the initial objection and lead to scrutiny of the wider care arrangements. In this case, the issue of covert medication had emerged from the original challenge, demonstrating how these proceedings can prompt examination of aspects of P’s care that may not have been the initial focus of the appeal.

It was also the first time I had observed the application of the new AGNI test in a post-AGNI hearing. The question of whether P was validly consenting was particularly significant, and I was interested to see how the Court approached it in practice. In this case, I was reassured by the focus on the sedative effects of P’s medication when considering whether his apparent compliance could amount to valid consent. However, it also made me question how “valid consent” might be interpreted in cases where there is no obvious factor, such as the sedative effects of medication, which might explain a person’s apparent change in behaviour.

In my work as an RPR advocate, I have had clients who repeatedly object to their DoLS yet become compliant with personal care and medication. This can happen because complying makes daily life easier, or because a person becomes tired of physically resisting their care. Their behaviour may therefore change without their underlying wishes or feelings necessarily changing with it.

I question whether there is a risk that a change from resistance to compliance could too readily be interpreted as evidence of consent. If someone was previously considered to be deprived of their liberty but subsequently appears to consent to their arrangements, it seems important to consider not only whether their behaviour has changed, but why it has changed.

This is particularly significant because a finding that someone is not deprived of their liberty has consequences beyond the label itself. Individuals who are deprived of their liberty benefit from independent checks and safeguards which may not apply in the same way if they are considered to be consenting to their arrangements. There is therefore a potential risk that, if apparent compliance is treated too readily as valid consent, an individual could lose those safeguards without sufficient consideration of whether they have genuinely changed their mind, become resigned to their circumstances, or simply stopped resisting.

Aside from the substantive issues, I thought this was one of the most transparent hearings I have observed. Both for P’s family and for me as an observer, the Court took care to explain the different legal tests, provide context from previous hearings and give P’s family multiple opportunities to raise their concerns. It demonstrated to me the value of the collaborative nature of Court of Protection proceedings: by allowing the parties and P’s family to contribute throughout the hearing, the Court was able to scrutinise different aspects of P’s care and ensure that issues were not overlooked.

Maria Maier is an aspiring barrister with an interest in the Court of Protection. She is currently working as a Relevant Person’s Representative (RPR) and Rule 1.2 Representative for adults who lack mental capacity and are deprived of their liberty under the Mental Capacity Act (MCA).  She has previously blogged for the Project here: Court approves sedative PRN medication  and Five Practical Tips For Observing Your First Court of Protection Hearing  She will begin her Bar Course studies in September 2026. Her LinkedIn is here.

A remarkable turnaround: Updating the “vile judgment” case

By Amanda Hill, 13th August 2026

As I write this in August 2026, Caroline Grady[1] is the primary (unpaid) carer for her mother, now in her eighties, who continues to live in her own home. Caroline visits every day and works alongside paid carers, who attend four times daily, to ensure her mother receives the care she needs. She can visit whenever she wishes and has unrestricted, unsupervised contact with her mother.

This is a remarkable turnaround.

For two years, between October 2023 and October 2025, the court banned Caroline from any unsupervised contact with her mother, the protected party ‘P’, including speaking to her on the phone – all calls had to have the speakerphone on. Norfolk County Council had arranged a 24-hour live-in care package and carers monitored their meetings and conversations, including recording what they said to each other.

This blog outlines the “Background” to the case and then describes in more detail what happened in the two most recent hearings, on 22nd October 2025 and 23rd March 2026.[2]

Background

This case, COP 14187074, is one the Open Justice Court of Protection Project has been following for a long time and we have published a number of blogs (see Appendix).[3]

In early 2023, Caroline’s mother, then in her late 70s, was in hospital with a chest infection.  While she was there, hospital staff and a hospital social worker became concerned about the mother/daughter relationship. The hospital made a safeguarding referral to the local authority, Norfolk County Council.  Caroline’s mother was discharged home in early May 2023. A few months later, following an alleged lasagne-throwing incident in late September 2023, a care plan, including live-in 24 hour care, was put in place, beginning in October 2023. The incident also led to Caroline being arrested for actual bodily harm and forbidden from seeing her mother for 3 months. She was never charged by the police. At an initial Court of Protection hearing, DJ Russell made an order declaring that there was reason to believe Caroline’s mother lacked capacity to conduct proceedings, and at a hearing on 17th January 2024, HHJ Beckley concurred.

At the same hearing he asked Caroline to give a number of “undertakings” (for more information about these, see “Make a legal promise to a court“). These included a promise only to have contact with her mother with a carer present. She was also asked to undertake not to use threatening or intimidating words or behaviour with the carer or with her mother, and not to cause her mother “upset or distress”. Undertakings have a penal notice attached to them, which means if somebody breaches them, they can be sent to prison. The judge also asked Caroline to agree not to use the Lasting Powers of Attorney. This was in advance of a fact-finding hearing, applied for by the local authority, which would establish whether or not Caroline had exerted coercive control over her mother.

At the fact-finding hearing in October 2024, Mrs Justice Arbuthnot found that Caroline’s mother lacked capacity to conduct proceedings, to decide about care, and to manage her property and affairs, but she did have capacity to decide about contact. The judge also found, on the balance of probabilities, all the allegations against Caroline to be “proved” or “found”, and declared that Caroline had undue influence over her mother.  The court invoked the inherent jurisdiction to protect Caroline’s mother and maintained supervised contact only, this time by court order rather than an undertaking. An injunction with 11 terms was added to the Lasting Power of Attorney for Health and Welfare (§75 of the judgment):

The terms state that Caroline:

1) … shall not install any camera, listening equipment or loudspeaker in [P’s]’s property, whether live-feed only, or live-feed plus recording…..

2) … shall not tell or suggest to [P’s]carers how to meet [P’s] care needs, or purport to hire or dismiss carers

3)…. shall not lie to, threaten, harass or intimidate [P]

4) …  shall not force [P] to exercise. 

5) …. shall not force-feed [P]

6) …..shall not mention or threaten to send [P] to a care home, or to Switzerland. 

7).… shall not deny [P] access to healthcare assessments or interventions. 

8)…..shall not take steps to prevent [P] from being administered prescribed medication. 

9) … shall not seek to discharge [P] from hospital against medical advice. 

10)…. shall not take steps to prevent social services and other social care, or healthcare practitioners from visiting or speaking with [P] alone. 

11)…. shall not take steps to move [P] to another place of residence.

In January 2025, Caroline was found to have been in contempt of court for breaching the undertakings she had given the court in January 2024. She was found to have upset her mother three times. She was found to have had unsupervised contact with her mother by not putting the phone on speakerphone all the time. She was found to have used the words “care home” in front of her mother, and to have told her mother a lie. It was open to the judge to commit Caroline to prison for these breaches of undertakings, but instead she fined her £500.

Normally, the names of people who are at risk of being committed to prison are made public in the court lists and in published judgments (and in any reports about the case). In this case, however, the judge did not authorise publication of her name. A court observer (Celia Kitzinger) made an application to remove the ban on publishing Caroline’s name – and other information about her which included the familial relationship between Caroline and the protected party. This was so that Open Justice Court of Protection blogs already in the public domain could be linked to the published judgment. The application was successful.

Caroline wants to give her side of the story and she wants the court proceedings to be publicised.  She gave her reaction to what she calls the “Vile judgment” in the blog of September 2025 (see Appendix).

Caroline did not  – and does not – accept all the “facts” that the Court found in the fact-finding hearing of October 2024. (In the civil court the ‘balance of probabilities’ test is applied so the probability that the “fact” is as the court determined can be as low as 51%.) Those facts that Caroline does accept are matters she understands and interprets very differently from the Court’s framing of what happened.

Caroline sought greater freedom to see her mother without supervision shortly after the fact-finding hearing. In December 2024 she applied for unrestricted contact on Christmas Day. The family wanted twelve hours together but the local authority only wanted them to have two.  The court finally authorised six hours, provided Caroline’s partner was present throughout.

Since the April 2025 hearing that concerned the Transparency Order and reporting restrictions, there have been two more hearings to discuss substantive issues, Caroline’s mother’s care, contact and the injunction.

The hearings in October 2025 and March 2026 reflect how significantly the case has evolved. By October 2025, the local authority had concluded that 24-hour live-in care was no longer necessary and sought court approval to replace it with four daily care visits supported by assistive technology. The court agreed, bringing an end to all restrictions on contact between Caroline and her mother. In October 2024, as Caroline’s mother had been assessed as having capacity to make decisions about contact, the inherent jurisdiction was invoked, instead of the Court of Protection. This “dropped away”, to use the judge’s words, after the October 2025 hearing.

Less than ten months after the family had pleaded to spend some hours together, unsupervised, on Christmas Day 2024, the court had lifted all restrictions on contact.

The March 2026 hearing addressed whether all the terms of the injunction attached to Caroline’s Lasting Power of Attorney for Health and Welfare could now be removed. The court decided they should remain in force for a further six months, with a final hearing listed for October 2026 to determine whether they should continue and to bring the proceedings to an end.

I will now set out in more detail what happened during the October 2025 and March 2026 hearings. The legal teams have remained largely unchanged throughout the proceedings I have observed. Mrs Justice Arbuthnot has presided over each hearing, Dr Oliver Lewis has represented Norfolk County Council, while Malcolm Chisholm has represented Caroline’s mother through the Official Solicitor[4].

The hearing of 22 October 2025

The October 2025 hearing concerned the authorisation of a significant change in Caroline’s mother’s care arrangements. Norfolk County Council had concluded that the 24-hour live-in care package was no longer necessary and sought the court’s approval to replace it with four daily care visits supported by assistive technology. If approved, the change would also bring an end to the supervision of contact between Caroline and her mother.

The remote hearing lasted just under two hours. Caroline joined from her mother’s home, together with her parents and her McKenzie friend, Arthur Stokes. During the hearing Caroline welcomed the fact that someone from the Open Justice Court of Protection Project was observing, commenting that “no family should be put through what we’ve been.”

The following paragraphs summarise the main content from the position statements.

The LA position

The local authority’s position was that the live-in care package had never been commissioned because of Caroline’s mother’s care needs alone. Rather, it had been introduced in October 2023 to protect her from the risk of abusive and controlling behaviour of her daughter. The authority argued that the protective purpose of the package had now been fulfilled. It noted that there had been no further incidents since the fact-finding of October 2024 and considered that Caroline had demonstrated an improved ability to regulate her behaviour.

The local authority also relied on Caroline’s mother’s own wishes. The position statement records her words:

“I am old now, I am in my 80s and I want a proper and normal life. I do not want to be somebody who is monitored and watched all the time. It is hurtful and I am not happy with that, who would be? It is not like they are a relative. They are always there and it is horrible”. (§15, LA PS)

If the 24-hour package of care was removed: “it would feel like heaven…….I just don’t feel as though I have got a life anymore at the moment. I feel like I am the guilty one, like I am being punished. At my age, I don’t think it is right”. (§18, LA PS).

Caroline’s mother was also quoted as saying that she was very happy to have unsupervised contact with her daughter.

To replace the live-in care package, the authority proposed four visits a day by paid carers together with assistive technology, including cameras without audio capability.

Caroline Grady’s position

Caroline took a different view. She argued that the live-in care should remain because she was concerned about her mother’s safety. Although she wanted unrestricted contact restored, she said she would rather accept continued supervision than see the 24-hour care package withdrawn. If live-in care did end, she argued that any replacement camera system should include audio so that she could speak to her mother in an emergency.

The Official Solicitor’s position

Representing Caroline’s mother through the Official Solicitor, counsel agreed that the 24-hour package could end, although he suggested a gradual transition. He emphasised that Caroline’s mother consistently wanted unrestricted contact with Caroline. But he submitted that the injunction terms attached to Caroline’s Lasting Power of Attorney should remain in place for the time being as an important safeguard.

As the option of 24 hour care was no longer being offered, the court could not order it to be continued, and did not suggest that it should be.  The judge observed that such packages are very unusual and that many older people rely on more limited support or fund additional care themselves. Caroline maintained that the decision was driven by financial considerations rather than her mother’s welfare, but the judge said there was no evidence of that.

Counsel for the Official Solicitor acknowledged the progress that had been made since the fact-finding hearing, remarking that the improvements were “to Miss Grady’s credit”.

Caroline questioned how the contact restrictions could be lifted while the injunction terms affecting her Lasting Power of Attorney remained. Counsel for the Official Solicitor explained that the two issues arose under different legal jurisdictions: decisions about contact had been dealt with under the court’s inherent jurisdiction, whereas the injunction terms regulating Caroline’s use of her powers as attorney remained matters for the Court of Protection.

The principal point of dispute concerned the proposed camera system. Caroline wanted audio capability so that she could reassure or guide her mother if she saw her fall. The local authority opposed this, arguing that an audio link could enable Caroline to resume “directing”, ie controlling her mother.  The local authority  insisted that any replacement system should provide video only. Caroline asked whether existing equipment could simply have its audio function disabled, but the authority required a new system to be installed. Caroline explained that she would have to pay for this new equipment, as all of her mother’s savings had been spent at the beginning of the court case (when she wanted to appoint her own legal representative.)

In giving judgment, Mrs Justice Arbuthnot concluded that the protective purpose of the supervision order had come to an end. She noted that there had been no repeat of the behaviour identified in the fact-finding judgment and that this was to Caroline’s credit. Most importantly, Caroline’s mother wanted both the live-in care package and the supervision of contact to end. As she had capacity to decide who she wished to see, the inherent jurisdiction order was discharged with immediate effect. Caroline and her mother were free to spend time together without restrictions, whenever they wanted.

The court also approved the replacement care package of four daily visits supported by assistive technology. The remaining issue—the future of the injunction terms attached to Caroline’s Lasting Power of Attorney—was deferred to the March 2026 hearing.

The hearing of 23 March 2026

This hearing addressed the issue of the remaining injunction terms, as well as reviewing Caroline’s mother’s wellbeing under the new arrangements.

By this stage, the arrangements approved in October 2025 had been in place for several months. Caroline’s mother remained at home, supported by carers visiting four times a day and assistive technology. Caroline continued to play a central role in her mother’s care and enjoyed unrestricted contact with her. The parties agreed that these arrangements were working well for Caroline’s mother. Counsel for the Local Authority started his submissions be saying that “She’s looking good and she says she’s feeling good.”

Counsel for the OS started his submissions by saying that it was a “pleasure to have [Caroline’s mum] back in court looking so well” and the judge concurred. He said that Caroline’s mother had told him she feels “8 out of 10”.

Unlike the previous hearing, this one took place in person, although I observed remotely. Caroline represented herself without her McKenzie friend, Arthur Stokes, who was unavailable. Her mother attended court, together with Caroline’s father and partner.

Counsel for the local authority maintained that there remained a significant risk of Caroline reverting to the behaviour identified in the October 2024 judgment. Particular emphasis was placed on the dispute over the camera system. Caroline had continued to argue that audio would enable her to reassure her mother in an emergency, but the local authority maintained that it would also allow her to direct her mother and interfere with the carers. It submitted that there was no care benefit to restoring audio and that Caroline’s mother herself did not want it.

At this point in the hearing, Mrs Justice Arbuthnot questioned whether all of the injunction terms remained necessary and explored whether a more limited approach might be appropriate. She said that one option was a “pick and mix” approach, so the first injunction (relating to installing “any camera, listening equipment or loudspeaker in [P’s]’s property, whether live-feed only, or live-feed plus recording”) could be left for “say 12 months”. She said she was conscious that there had been proceedings for “two to three years” – with the implication that it might be appropriate to bring proceedings to a conclusion rather than returning to court every six months.

Counsel for the Official Solicitor similarly acknowledged that the proceedings should not continue indefinitely. However, he argued that Caroline’s continuing wish to restore the audio system demonstrated why at least some protection remained necessary. He suggested that the first injunction term, preventing the installation of cameras with audio capability, might need to remain in force even if the others were eventually removed.

Caroline explained that her concern about audio arose from previous occasions when she had used the system to reassure her mother after falls. She said that she wanted only to be able to communicate with her mother in an emergency and described herself as her mother’s primary carer. She accepted that she could sometimes be overprotective but denied that her motivation was to control her mother.

Caroline and her father criticise the court

In her submissions to the court, Caroline returned to the findings made in October 2024. She reiterated that she continued to dispute aspects of the fact-finding judgment, including findings relating to force-feeding and other incidents. She accepted that she had to live with the court’s decision but maintained that some of the events had been misunderstood or mischaracterised. The judge responded that those findings had been made after hearing the evidence and would not be revisited.

Caroline’s father also addressed the court, in a statement Caroline read out for him. He expressed the family’s view that the proceedings had had a profound impact on their private family life and urging the court to bring the litigation to an end. He used the term “Totalitarian State” in his statement.

After hearing Caroline’s and her father’s statements, the judge seemed to have changed her mind. She indicated that, rather than just keeping the first injunction term about audio on the camera, as she had suggested earlier in the hearing, she was now minded to keep them all.  She remained concerned about the risk of Caroline reverting to the behaviour identified in the fact-finding judgment. While acknowledging the progress that had been made and recognising Caroline’s commitment to her mother, she considered it significant that Caroline continued to reject important findings made by the court and remained determined to restore the audio system despite her mother’s wishes.

Following a short adjournment, the parties discussed whether the injunction terms might instead be replaced by undertakings from Caroline. This would have required her to give what the judge called “just promises to the court” not to do what the injunction terms currently forbade her from doing.

Caroline declined to give “undertakings”. She said she found them “scary”. Although she would have preferred the injunction terms to be removed altogether, she said she would rather they remained than give “undertakings”. I don’t find this reaction surprising, given that she could have gone to prison in January 2025 for breaching previous undertakings. Undertakings are also generally in force “until further order of the court” – so forever, unless they are discharged by the court at some point in the future

Mrs Justice Arbuthnot ultimately concluded that the injunction terms should continue for a further six months. She accepted that Caroline’s mother was now living successfully under the revised care arrangements. She also recognised Caroline’s obvious love for her mother and the improvements that had taken place since the fact-finding hearing. Nevertheless, she remained satisfied that the injunction continued to provide appropriate protection while the parties adjusted to the new arrangements.

The court did, however, remove the term preventing Caroline from moving her mother to another residence (11), leaving the remaining ten terms in force. It also clarified that the order did not prevent Caroline from discussing her mother’s day-to-day care with carers where they invited her views, addressing concerns that ordinary communication might place her in breach of the injunction.

The judge made clear again that she wished these proceedings to end. A final hearing was listed for 8 October 2026 to determine whether the remaining terms of the injunction should continue and, if possible, to conclude the litigation. I plan to observe this hearing.

Amanda Hill is a PhD student at the School of Journalism, Media and Culture at Cardiff University. Her research focuses on the Court of Protection, exploring family experiences, media representations and social media activism. She is a core team member of OJCOP. She is also a daughter of a P in a Court of Protection case and has been a Litigant in Person. She is mainly on LinkedIn (here), but also sometimes on X (@AmandaAPHill).

Appendix

In chronological order, starting with the most recent down to the earliest:

[1] Caroline Grady can be named after Celia Kitzinger made a successful application to the court for reporting restrictions to be varied. There is a  published judgment about the application (Norfolk County Council v CA & Ors [2025] EWCOP 16 (T3) in April 2025)

[2] In addition to observing the hearings, I have corresponded with Caroline and interviewed both her and her McKenzie friend, Arthur Stokes, as part of my PhD research, and I draw on this research in writing this blog. I also received the parties’ position statements for both hearings which helped my understanding of the issues before the court, and which I use for writing this blog. I have also drawn on the published judgments.

[3] We’ve published five blogs about it since March 2024 (as listed in the Appendix), the most recent in September 2025 when we reported Caroline’s response to what she called the “vile judgment” (Norfolk County Council v CA & Ors [2024] EWCOP 64 (T3)).

[4] Except for the January 2025 committal hearing

Unlawful deprivation of liberty and the retrospective effect of AGNI: When the capacity requirement is not met

 By Celia Kitzinger, 9th August 2026
 
The standard authorisation of deprivation of liberty under the Mental Capacity Act 2005 has six qualifying assessments. The most significant of the six for the case I describe here is that the detained person must lack capacity to make their own decision about residence and care[1].  For adults with capacity to decide for themselves, a decision to deprive them of liberty cannot be made under the Mental Capacity Act 2005, and the Court of Protection has no jurisdiction. 
 
There are relatively few published judgments from cases in which P has been found to have capacity to decide on residence and care notwithstanding the existence of a standard authorisation saying that they lack that capacity[2].  Although we’ve reported  on several hearings in which protected parties have made that argument, judges have almost always determined, contrary to P’s views, that they lack the relevant capacity[3]. 
 
The case I’m reporting on here is one of the very few contested hearings I’ve watched in which P is found to have capacity to make her own decision, and the standard authorisation is therefore discharged. 
 
This case is also distinguished from others I’ve observed because it follows the Supreme Court decision in A Reference by the Attorney General for Northern Ireland [2026] UKSC 16 (henceforth AGNI). This landmark UK Supreme Court ruling fundamentally changed the legal definition of a deprivation of liberty. It explicitly overturns the long-standing Cheshire West “acid test” in favour of a flexible, multi-factorial assessment, with the effect that far fewer people are now considered to be deprived of their liberty. Since, in accordance with the orthodox declaratory theory of common law, Supreme Court decisions apply retrospectively (declaring what the law is now and always has been), it’s also quite possible that the conditions of a patient’s confinement and care may never, properly considered, have amounted to “deprivation of liberty” despite many years of standard authorisations.
 
So, in this case – COP 20018413 before DJ Glassbrook on 1st July 2026 – the s.21a challenge to P’s deprivation of liberty on the basis that she had capacity to make her own decisions could, in principle, have had as one of its outcomes a finding that she was not deprived of liberty and never had been.  For this P, who was considering whether to make an application for damages for a breach of her rights, this would have meant no Article 5 claim and no damages (even though the finding that she has capacity had been upheld).
 
Three key questions were addressed in the hearing.  The questions, and the recitals, declarations and orders relating to them in the approved order (issued 20th July 2026) are reported below. I’ll then report specifically on the hearing itself.
 
Question 1:  Is there sufficient evidence to rebut the presumption that P has capacity to make decisions about her residence and care such that the standard authorisation that currently applies should be discharged?
 
The judge found that P has capacity to make her own decisions about care and residence:  “IT IS DETERMINED on a final basis pursuant to s.15 MCA 2005 that: [P] has capacity to: (a) conduct these proceedings; (b) make decisions about her property and financial affairs; (c) make decisions about her residence; (d) make decisions about her care and support’….” (§1).  This means that “the mental capacity requirement in paragraph 15 of Schedule A1 MCA 2005 is not met…” (§2).  Consequently, the judge ordered that “the standard authorisation which came into force on 18 November 2025, and which was due to expire on 17th November 2026 is hereby terminated” (§3).
 
Question 2: If P has the requisite capacity now, from what date can it be said that she retained or regained that capacity?
 
The order records this: “The court makes no finding as to the date upon which [P] first had, or regained, such capacity […] save that it was no later than the date of [the independent expert consultant psychiatrist’s] assessment which formed the basis of the report of 21.1.26”.
 
Question 3: Do the circumstances of her residence and care amount to a deprivation of liberty under Article 5 of the European Convention on Human Rights as this is understood following AGNI  – and if so, was that deprivation of liberty unlawful?
 
Despite the change brought about by AGNI in the legal application of Article 5, the question of whether or not the conditions of P’s placement and care – now or in the past – were such as to amount to a deprivation of liberty (as a matter of law, now correctly understood) is not explicitly addressed in the final order.  Here’s how it reads:
 
4. The standard authorisation under Schedule A1 to the Mental Capacity Act 2005 authorising [P’]s deprivation of liberty ceased to satisfy the qualifying requirements once [P] had capacity to make decisions concerning her residence and care.
 
5. Accordingly, from the date on which [P] had such capacity, the standard authorisation was invalid and the deprivation of liberty to which [P] was subject was unlawful.
 
I have some difficulties with this because the order seems to conflate: (a) a standard authorisation and ‘deprivation of liberty’; and  (b) a standard authorisation that doesn’t satisfy the qualifying requirements with a ‘deprivation of liberty’ that is unlawful. 
 
First, it cannot be unproblematically assumed that a standard authorisation issued before the AGNI judgment was handed down on 2nd July 2026 does in fact evidence  ‘deprivation of liberty’ under the meaning of Article 5 ECHR, as it must now be interpreted following AGNI. I have observed other s.21a hearings in which parties challenging P’s ‘deprivation of liberty’ were informed, following AGNI, that P is now understood not to be deprived of their liberty – despite a standard authorisation saying that they are – with the result that the standard authorisation has been terminated while the arrangements for their residence and care remained the same[4]. In these cases, termination of the standard authorisation was not because P had capacity to decide on their residence and care, nor because changes were made to reduce restrictions relating to their residence and care, but because the pre-existing arrangements for residence and care were no longer, as a matter of law, constitutive of a deprivation of P’s liberty.
 
So, in this case, although it is correct to say that the standard authorisation was made (back in November 2024) to authorise arrangements for P’s residence and care that constituted a deprivation of liberty under Cheshire West, those same arrangements may have ceased to be a deprivation of liberty (with retrospective effect) following handing down of the decision in AGNI on 2nd July 2026. On my reading, then, the second part of §5 in the order is not something that simply follows (as implied by the word “accordingly”) from §4 and the first part of §5, because the effect of AGNI is to require analysis of whether P was in fact, as a matter of law, deprived of her liberty, notwithstanding the existence of a standard authorisation.
 
In fact, in the course of the hearing, the judge did address the question of whether, in this case, what constituted a deprivation of liberty in the Cheshire West sense continued to constitute a deprivation of liberty following AGNI, and he concluded that it did, drawing heavily (as have other judgments) on the presence of objection.  I was surprised that this did not make it into the order.
 
Second, the question of the lawfulness of a past deprivation of liberty does not follow automatically from a finding of P’s capacity. Restrictions on protected parties are very commonly in place where there is ‘reason to believe’ (s.48 MCA 2005) that they lack capacity in relation to any of the decisions needing to be made.  Once capacity is determined, a P found to have the requisite capacity is free to make their own decision going forward, but it is not usually suggested that the protection afforded P up to that point has been “unlawful”.  The court in this case had relied on s.48 MCA 2005 for its jurisdiction (as recorded in Recital G of the order), which would justify continued deprivation of liberty pending a final determination of capacity – at least insofar as the timescale complies with the Article 5(4) requirement for the lawfulness of a detention to be “decided speedily by a court”. There is a problem, as I see it, in that P’s application was made on 27th June 2025 and not decided until more than a year later on 1st July 2026, which may well not qualify as a “speedy” decision (though I have seen many other s.21a proceedings of similar duration). Based on what I’ve learnt about this case, it could reasonably be argued that there were good reasons for the court’s delay in reaching a decision – notably the problems with the first independent expert report (by a psychiatrist), and that expert’s recommendation to commission a second expert report from a different professional (an occupational therapist).  I find it difficult to square the judge’s declaration that P was unlawfully deprived of her liberty from a date “no later than the date of [the independent expert consultant psychiatrist’s] assessment which formed the basis of the report of 21.1.26”, with the fact that he had ongoing judicial oversight of the case at that point and did not discharge the standard authorisation, as was within his power to do, in January. So, I’m not sure I understand how the “deprivation of liberty” suffered by P between 21st January 2026 and 1st June 2026 could have been “unlawful”. I hope legally qualified readers of this blog might offer me some help with understanding this (please use the ‘Reply’ button at the bottom of the blog post).
 
One value in observing hearings, rather than relying on orders and judgments to understand judicial decision-making, is the insight they offer into how judges consider the evidence and balance opposing arguments in practice on the ground.  Some of the matters that puzzle me in the order were addressed in the course of the hearing.  I’ll first give some “Background” and then describe “The Hearing” (which included an oral judgment), and end with some “Reflections”.

1. Background to the hearing

Ms Smith (not her real name) is a woman in her fifties with a history of strokes and an acquired brain injury (I think from about five years ago). She has some cognitive impairment, including executive functioning difficulties, and some significant physical and mental health challenges, including mobility challenges that put her at risk of falls.  She lives in a 24-hour supported placement which she experiences as “restrictive, isolating and unsuitable for her needs”.  She describes life in the care home as “like prison” and feels she’s “lost years of her life to institutional care”[5]. 
 
In June 2025, Ms Smith made a s.21a application (through her litigation friend, the Official Solicitor) to challenge the standard authorisation that, on the face of it, makes it lawful to deprive her of her liberty.[6]  It was still the subject of ongoing proceedings, more than a year later.
 
The s21a challenge is based on Ms Smith’s claim that she has capacity to make her own decisions about where to live and receive care.  She also seeks a declaration that she’s been unlawfully deprived of her liberty since the beginning of her detention at the current placement: such a declaration would make possible a potential claim for false imprisonment and/or damages under the Human Rights Act 1998.
 
In December 2025 (I don’t know why not earlier), the court instructed a consultant psychiatrist to make an independent capacity assessment[7].  He  filed his report in January 2026. His findings are equivocal.  He found “strong evidence” she has capacity in relation to litigation, and said she “likely” has capacity to make decisions about property and affairs; it’s “plausible” that she has capacity for decisions about  care and support and it’s “finely balanced” as to whether she has capacity or not in relation to accommodation. This equivocation and lack of clarity led to uncertainty and dispute between the parties about the capacity evidence. Further questions were asked of the expert, who submitted an Addendum Report on 4th March 2026.  According to the judge, this “included a lot more words but didn’t actually help us with a lot more clarity, and Dr Z said it wasn’t possible to reach a definitive conclusion without an assessment by an occupational therapist”.  As recommended by Dr Z, on 13th March 2026, the judge directed a second independent expert report, this time from an occupational therapist. This second independent report was received in early June 2026, and was before the court at this hearing. 
 
The occupational therapist’s expert report concludes unambiguously that Ms Smith has the mental capacity to make decisions in relation to residence, care and support, medication management and alcohol use.  It also concludes that her current care home is not in her best interests as it’s “overly restrictive and does not sufficiently promote [Ms Smith’s] autonomy or rehabilitation potential”. The home environment, it says, contributes to “occupational deprivation, emotional distress, and social isolation” and that “while [Ms Smith] has ongoing vulnerabilities and a risk of falls, these factors do not justify the current level of supervision and containment when less restrictive alternatives may meet her needs”.  The report recommends a “less restrictive, rehabilitation-focused” placement with “a strengths-based approach focused on enablement rather than continuous supervision” involving “positive risk-taking principles balancing safety with [Ms Smith’s] dignity and autonomy”. 

The Official Solicitor accepts the expert report from the occupational therapist – and endorses, in particular, her finding that Ms Smith has capacity to make her own decisions about where to live and receive care.  The local authority does not accept that report and has raised various questions. For example, concerning the finding that Ms Smith has “at times minimised her support needs” they want to know “how that minimisation was taken into account” in determining her capacity. The local authority says that Ms Smith’s capacity remains in dispute and cannot be properly determined on the current written evidence alone, and that another hearing is needed, preferably in person with both experts in court,  to test the capacity findings.

2. The hearing

The hearing opened with the judge’s summary of and reflection on the case.  It was an “uncomfortable” situation, said DJ Glassbrook.  There was “significant evidence” before him, in the form of two independent expert reports, that the protected party either “plausibly” has or definitely has capacity to make her own decisions about where she lives and the care she receives, and “if she does, that means the court’s jurisdiction falls away”.  He’s a judge who routinely makes visible his “working out” of the case during the course of hearings, and he did so here.[8]
 
“The whole regime is geared towards one having the right to challenge a deprivation of liberty urgently.  Here we are, however, many months after the start, when capacity has been an issue for some time, and we had, can I say, a maybe unfortunate report from the psychiatrist earlier this year which was (pause) not as clear as many psychiatric reports might have been, and came up with the conclusions that there is strong evidence that this lady has capacity to litigate – I’ll come back to that – and also property and affairs, but that it’s finely balanced and “plausible”, the word used, either way concerning residence and support. So, questions were asked and then in March, Dr Z again said in the circumstances of this case we need the assistance of an occupational therapist – which is unusual, but there we go.  We have our Occupational Therapy report from 7th June and our OT concludes regarding the relevant areas that this lady does have capacity. Albeit she acknowledges that the challenges she’s had in life – possibly the brain injury included – influence aspects of her function and needs, but notwithstanding that, she concludes that she has capacity. And I have the Official Solicitor in support of that saying “Yes, she’s got capacity – make the declarations”.  And on the other hand, I have the Local Authority saying to me “we need more evidence”, and just over a page of questions – and saying not only that we need those questions answering, but we need an oral hearing.  Hmm…. That’s not an easy one.  First of all, if we’re going to have oral evidence, what do you need the written questions for? You can ask them in cross-examination – that may speed things up.  Then I’m thinking to myself, suppose the court and HMCTS can all accommodate a hearing, how long is it going to take to line up a hearing with the occupational therapist and the psychiatrist available?  And in the meantime, if I accede to the local authority’s wishes, the standard authorisation and hence the deprivation of liberty – somebody being locked up against her will – continues.  I use that emotive language[9] deliberately because this lady quite obviously isn’t happy where she is. If I go to the OT report, p. 661, “the current placement puts greater emphasis on containment than on rehabilitation and independence”, and p. 662 it’s “overly restrictive”. That’s not good to read. So, this isn’t a neutral observation – “Yes, there’s a lady locked up but she’ll be alright; let’s take our time”.  Far from it. This is a lady who there’s a distinct probability that her deprivation of liberty, right now, at twenty past two on 1st July,  should not be – and the Official Solicitor’s case is that there should be declarations to that effect by the end of today.  The Local Authority’s case is for a contested hearing – their preference is for contested evidence live in a courtroom, and we do that in two months, three months. There’s some really fundamental stuff to grapple with here.” 
 
Finally, the judge referred to case law from “the Blue Book”, citing two cases:

  • AJ v a Local Authority [2015] EWCOP 5 (heard by Baker J) “There is a positive obligation on the state to protect the liberty of those within its jurisdiction” and “there is an obligation on the State to ensure that a person deprived of liberty is not only entitled but enabled to have the lawfulness of his detention reviewed speedily by a court”.  The burden of protecting Article 5 rights is one, said the judge “for which ultimate responsibility lay with the local authority”. 
  • DL v LB Enfield 2019 (heard by HHJ Hilder) The judge read out the whole of §39 and part of §40
    “However large the numbers of a local authority caseload of persons being provided with care in the circumstances of their liberty being deprived it is imperative that those responsible for such conditions are never allowed to become cavalier about the significance of deprivation of liberty to the individual concerned and to society as a whole. In my judgment Article 5 rights do not become less precious because of the administrative burden of cases reliant on them. (§39)
    […] Article 5.4 is first and foremost a guarantee of a fair procedure for reviewing the lawfulness of detention. An applicant is not required as a precondition to enjoying that protection to show that on the facts of his case he stands any particular chance of success in obtaining his release. (§40)

These cases (and the extracts selected from them) refer to the duty of the public bodies to make the relevant applications to court – as this local authority had done. I don’t know whether the implication was that they had unreasonably delayed doing so: no such case was made at this hearing

Oral submissions from the local authority

The local authority was represented by Janice Wills (instructed by solicitors in Oxfordshire County Council legal services). Following the opening summary from the judge, Counsel began her submissions by saying:

“I have heard what you’ve said. The local authority sees it as imperative that this matter is determined and determined quickly.  My client had hoped that the report of [the Occupational Therapist] would bottom out the unhelpful recommendations of [the psychiatrist]. There are elements of the OT report we have problems with. We are not trying to be unhelpful.  The local authority social work team have read the report very carefully and there are some sweeping generalisations that are not evidence-based, and some areas that cause concern”.

She went on to detail some of these with reference to page and paragraph numbers in the document I did not have and said that the report was “going beyond its remit” (I’m not sure how – maybe in respect to the ‘best interests’ concerns?).  She ended with this: “The local authority is not saying that P does not have capacity. We are saying that the information we have been given does not evidence the conclusions reached.  We hope that the questions asked [the list of questions to which the judge had earlier referred], and asked very swiftly on receiving of the report – will go a long way to confirming that P does have capacity and we can move on”. (It seemed that the list of questions had already been sent to the OT.)

The judge then returned to the matter of Ms Smith’s litigation capacity. Both expert reports stated that she had litigation capacity and both the LA and the OS (the latter shortly to be discharged as a consequence) accepted that she had litigation capacity. He asked how it could possibly be the case that she had capacity to conduct the present legal proceedings (about her care and residence) if in fact – as the LA was concerned might be the case –  she was unable to understand, retain and weigh information about her care and residence. It was illogical, said the judge, for the LA to claim that she had litigation but not subject matter capacity, and there was case law to say so. This led to a protracted search for the relevant case law, which turned out to be a case decided by Mostyn J and from which the judge read the following paragraph: “I would go further and say that it is virtually impossible to conceive of circumstances where someone lacks capacity to make a decision about medical treatment, but yet has capacity to make decisions about the manifold steps or stances needed to be addressed in litigation about that very same subject matter. It seems to me to be completely illogical to say that someone is incapable of making a decision about medical treatment, but is capable of making a decision about what to submit to a judge who is making that very determination.” (§33, Re P [2021] EWCOP 27).
 
“There it is!” said the judge.  “Virtually impossible” and “illogical” – and if I substitute the care and residence decision for the medical decision, it seems to me that I have the identical position.  It is virtually impossible to conceive of circumstances where someone lacks capacity to make a decision about their care and residence, but yet has capacity to make decisions about the manifold steps or stances needed to be addressed in litigation about that very same subject matter”.
 
Counsel for the LA replied: “I hear what you are saying. You have heard the Local Authority’s position. The Local Authority remains concerned about capacity. I don’t know if I can help you further”.

Oral submissions from the Official Solicitor

Ms Smith, the applicant, was represented through her litigation friend the Official Solicitor by Laura Shepherd (instructed by solicitors at HAB law).  She asserted that Ms Smith has capacity to make decisions on residence and care.   An exchange with the judge ensued:
Judge:  And if this lady has capacity, it follows that the mental capacity requirement is no longer met, and from that it follows that the whole of the standard authorisation falls, doesn’t it?
LA: Yes, Judge.  We would add a declaration that since she has been detained she has had capacity and therefore she has been deprived of her rights.
Judge: I’ll come back to that. The fundamental point is that she has capacity, the mental capacity requirement is not met, therefore the standard authorisation is rescinded or discharged, and the consequence of that surely is that if this lady, when she is told that, says “it’s a nice sunny day, I’m going out”, she is free to go, whether she goes for a quick walk outside or leaves permanently.
LA: That’s right, Judge.
Judge: What would you say to the Mostyn quote?
LA: It is rare to have litigation capacity and not subject matter capacity.
Judge: Virtually impossible?
LA Yes, Judge.
Judge: In circumstances where I have to decide on the balance of probability… I appreciate that the case has been heard under s.48, “reason to believe”, but that has to have some sensible threshold, and if I were to suggest that “virtually impossible” implies that there is still some miniscule possibility, to my mind that doesn’t meet the sensible threshold of “reason to believe”.  I suspect you’d agree with that?
LA: Yes, Judge. The court should make its own decisions on each of the domains separately.
Judge: Agreed.  But there is an agreed position between the parties that we have a lady with litigation capacity. That’s a huge thing. We have no party telling me that she lacks capacity. Ultimately the court has to decide for itself – but it’s a huge thing if the parties are agreeing on it.  So I need to deal with that first. 
 
The judge turned next to counsel for the LA in case there was anything she wanted to say before delivering his oral judgment. She wanted to “make clear that the local authority is not being obstructive in any way, shape, or form. We just want the best outcome. We highlight again that significant concerns remain in the mind of the social work team”.

Oral decision on capacity

The judge reviewed the case law already discussed, including the relationship between litigation capacity and subject matter capacity: he read out the extract from Mostyn’s judgment (again) from “the standard textbook, page 2564 of Court of Protection Practice for this year” which he said “makes total sense”. His decision was this:
 
“In my judgment, this lady has capacity for decisions about her accommodation and her care in that accommodation. It follows from that that the standard authorisation cannot stand.  She is no longer deprived of her liberty, and if that means that this afternoon she fancies leaving, temporarily or otherwise, then so be it. And if that’s an unwise decision, so be it. We are not here to stop people making unwise decisions.  Nonetheless, she still needs somewhere to live and I imagine that will be in the very same placement, though its ability to stop her leaving must now cease.”

Oral decision on deprivation of liberty following AGNI

Having delivered his oral judgment about capacity, the judge then turned to AGNI. “If it’s relevant to look at AGNI and one looks at a lady who fulfilled the acid test requirement and one who does object to where she is, and we have restrictions which mean a greater emphasis on supervision and containment, when AGNI says to the effect that if there’s an objection, that’s probably very good evidence of deprivation of liberty, that’s evidence that even under the new test, that lady has been deprived of her liberty.”
 
There followed some discussion about the difficulty of establishing the date from which the “unlawful detention” commenced. In the absence of retrospective capacity evidence, the judge settled on 21st January 2026 “when Dr Z gave opinion that there was strong evidence of litigation capacity and for reasons already set out that would also cover capacity to decide on care and residence”.
 
It’s a fairly cursory assessment of ‘deprivation of liberty’ following AGNI from the judge, but perhaps all he felt was needed, given that both the OS and the LA accepted that Ms Smith’s “deprivation of liberty” survived the AGNI test.
 
According to the Official Solicitor’s position statement:

“As to whether following [AGNI], [Ms Smith’s] arrangements for residence, care and support amount to a deprivation of liberty, it is submitted that they do. She describes the arrangements as being “like prison” due to the restrictions on her movements and constant supervision. She is also strongly objecting to the placement and is not consenting to it in anyway. Considering the multi-factorial test set out by the Supreme Court, it is submitted that [Ms Smith] is being deprived of her liberty.” (Official Solicitor)
 
The matter occupies five paragraphs of the Local Authority’s position statement:

38. The Local Authority submits that [Ms Smith] is currently deprived of her liberty for the purposes of Article 5 ECHR.

39. That conclusion is properly reached by applying the multifactorial approach endorsed by the Supreme Court in [AGNI]. The Court is required to consider the cumulative nature, degree and intensity of the measures in place, rather than applying a rigid or mechanistic test.

40. Whilst the Local Authority has sought to reduce restrictions where it has been safe to do so, [Ms Smith] remains subject to a significant package of care, supervision and support. She resides in a regulated care setting, receives ongoing support with personal care, medication management, daily living tasks, emotional regulation and risk management, and continues to require staff oversight in relation to community access and her wider care needs.

41. The Local Authority acknowledges that some restrictions have recently been reduced. In particular, [Ms Smith] is now permitted greater access to kitchen facilities for meal preparation and hot drinks, subject to appropriate safeguards, and is able to walk independently within the grounds of the placement.  These developments reflect the Local Authority’s commitment to promoting [Ms Smith’s] autonomy and maximising her independence wherever possible.

42. However, when viewed cumulatively and in the context of [Ms Smith’s] overall care arrangements, the Local Authority considers that the degree of supervision, support and control that remains necessary amounts to a deprivation of liberty.  Relevant factors include [Ms Smith’s] continued need for a highly supported environment, ongoing supervision and monitoring, restrictions designed to manage identified risks, the absence of a viable less restrictive placement option at present, and the professional view that any move to a community setting would require a comprehensive package of 24-hour support broadly equivalent to her current arrangements.
 
I reflect (briefly) on these submissions in my closing section.

Ms Smith in person

Finally, counsel for the Official Solicitor asked whether Ms Smith could address the court herself. Ms Smith had been present throughout the hearing (although not introduced at the start) and I had noticed her listening intently. She was articulate and unsurprisingly emotionaI, apparently overcome with relief at the outcome of the hearing.

Ms S: I just want to say that I think it’s really important people aren’t considering that I had a very severe stroke and bleed on the brain. I couldn’t talk properly at the time and I couldn’t express what I was feeling. I was taken as an idiot. The first eight months I was here it was necessary, but after that, the next three and a half years I’ve been detained unlawfully.
Judge: I can understand that. This shows the importance of looking carefully at whether people- Even if the local authority has lots of cases on – not to lose sight of individuals. That’s what these cases are all about. Every now and again a s.21a case makes a huge difference to the individual, and yours is one of those.
OS: Ms Smith isn’t intending to leave the placement right away. She will work with staff to find somewhere to live. They still have Care Act responsibilities for her.
Ms S: I would like to be able to leave just to go into town and come back again. It’s not in my interests to move out right away. I have capacity and need to use it to find somewhere to live. I haven’t got anywhere to go. The staff here are nice. We have a laugh and a joke and it’s quite fun sometimes. (Tearfully)Thank you.

I offered Ms Smith (through her legal team) the opportunity to provide additional input into this blog post, but they did not receive a response from her about my invitation.

3. Reflections

It seemed clear to me that everyone in court wanted the best outcome for Ms Smith and in that sense the Court of Protection was working as it should.  But there was a strong difference of opinion as to Ms Smith’s capacity to make her own decisions and the risks of her living in a less protected environment.  The Official Solicitor promoted her autonomy (even at the risk of unwise decision-making). The local authority wanted to keep her safe. It’s a very familiar dilemma.

It would have helped the court to have had better evidence of her capacity available much sooner. it was now more than a year since the s.21a application, with capacity still contested, so the judge was in an unenviable position. It seemed to me that the uncontested evidence on litigation capacity was being used – in conjunction with Mostyn’s judgment – to do a lot of heavy lifting in the hearing in the judicial reasoning about Ms Smith’s capacity in relation to care and residence (and this was not necessarily reflected in the order).

This difficult situation was complicated by the changed definition of ‘deprivation of liberty’ since AGNI – and although it was addressed, it was not the focus of the court’s concern (for obvious reasons).
From the perspective of a court observer, seeking to understand how decisions about ‘deprivation of liberty’ are made following AGNI, the position statements and the judgment are disappointingly short on detail.  The local authority statement in particular seems to place great emphasis on the role of supervision, monitoring, safeguards and 24-hour support as constituting ‘deprivation of liberty’ – whereas my reading of AGNI is that even extensive supervision etc may fail to qualify as ‘deprivation of liberty’ under certain circumstances – as in the case decided by HHJ Burrows concerning a young woman subject to constant supervision and control including CCTV cameras[10]. The AGNI multi-factorial test would consider the purpose and proportionality of the extensive supervision and whether it is ‘normal’ for persons with that kind of disability.  I wonder whether the decison-making in this case reflects what Alex Ruck Keene, in his analysis of the (so far) only published DOLS judgment following AGNI, has called “the gravitational pull of Cheshire West”.[11] I note, additionally, that as in other cases I’ve observed, objection is treated as being highly relevant, post-AGNI, in constituting care arrangements as ‘deprivation of liberty’.[12] 

So, despite the judgment in this case, I will continue to wonder whether or not Ms Smith was still “deprived of liberty” following AGNI (on balance, I share the sense that yes she was), and also whether or not this can be said to have been “unlawful” since January 2026, and if so on what basis, given judicial oversight of the case during that period.

More broadly, I wonder whether a robust finding of “unlawful deprivation of liberty” made before 2nd June 2026 (when AGNI was handed down) could potentially fail today on the grounds that the circumstances of P’s detention never really constituted a “deprivation of liberty” properly considered. It’s probably academic in this particular case, but if at the time of the detention, everyone (the Official Solicitor, the supervisory body, the Court of Protection) proceeded on the basis that Article 5 was engaged, and a standard authorisation was obtained precisely because everyone accepted there was a deprivation of liberty, then surely a later reinterpretation of Article 5 should not retrospectively extinguish a potential remedy because the legal definition changed before the case was heard or before damages were assessed[13]. (Comments and feedback very welcome via the ‘Reply’ button.)

Finally, as all other cases concerned with deprivation of liberty and s.21a, I am grateful to the courts for ensuring that public bodies are (in HHJ Hilder’s words) “never allowed to become cavalier about the significance of deprivation of liberty to the individual concerned and to society as a whole” – a matter of particular and continuing importance since the Supreme Court decision in AGNI.

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)

Endnotes

[1] “Capacity” is as defined in domestic law – i.e. they must be able to understand, retain and weigh information relevant to the decision to be made. The other qualifying requirements are age (the person must be 18 or older), a diagnosed ‘mental disorder’, the arrangements are in their best interests, there’s no conflict with Mental Health Act detention, and the decision does not conflict with an advance decision to refuse treatment and is not opposed by someone holding Lasting Power of Attorney, or Deputyships etc.
[2] This judgment (made before the Supreme Court decision in Cheshire West) is interesting for determining both that P has capacity to make her own decisions about care and residence, and also that she is not deprived of her liberty despite not living at home as she wishes: CC v KK and STCC [2012] EWHC 2136 (COP)
[3] Influencing ‘best interests’ decisions: An eloquent incapacitious P For a case involving a P who successfully argued that she had litigation capacity see Strongly held beliefs do not equate to lack of litigation capacity: Judgment concerning Luba Macpherson’s appeal against committal to prison
[4] See these three blog posts in each of which a ‘P’ previously considered as a matter of law to have been deprived of their liberty now, post-AGNI, no longer meets the criteria: Considering ‘deprivation of liberty’ in a family home setting after AGNI; The irony and the AGNI: After years of traumatic DOLS experiences, P now no longer meets the criteria; What happens to restricted patients after AGNI? SJ Hilder considers the consequences 
[5] I’m grateful to the judge (and to the parties) for the uncontested decision to disclose position statements to me – enabling me better to understand the background to the case, the relevant facts the judge took into account and the basis upon which the judge arrived at his decision.  In writing this blog post I also draw on my contemporaneous notes from the hearing (as accurate as I can make them but unlikely to be completely verbatim) and the approved order issued on 20th July 2026.
[6] The initial application was to challenge the standard authorisation granted by the local authority that came into force on 7th November 2024.  The proceedings were subsequently reconstituted as a challenge to the standard authorisation dated 18th November 2025.
[7] Previous capacity assessments, completed by social workers (in relation to property and financial affairs, and in relation to residence and care) and by a senior carer (in relation to community access) between early June 2024 and early October 2025, found that Ms Smith lacked capacity in these areas of decision-making.  
[8] As I’ve commented before see: Objections (and breached conditions) after AGNI
[9] The judge commented later in the hearing on his use of “emotive language” when he said, “it sits with me that someone has been locked up – emotive language again – when it’s not been justified”.
[10] No published judgment but the blog post is here: Considering ‘deprivation of liberty’ in a family home setting after AGNI
[11] The judgment is Oxfordshire County Council v P [2026] EWCOP 33 (T2). The commentary is here: https://www.mentalcapacitylawandpolicy.org.uk/mental-capacity-end-of-term-report/
[12] In the absence of published judgments, I refer readers to two blog posts describing judicial decisions relying on ‘objection’ in formulating the person’s care arrangements as ‘deprivation of liberty’: Objections (and breached conditions) after AGNI (this is also DJ Glassbrook) and Judge authorises medical treatment and DOLS in hospital (Ms Powell KC was the judge). There are also cases where the absence of objection was cited as contributing to the formulation of the person’s care arrangements as not constitutive of a deprivation of liberty: What happens to restricted patients after AGNI? SJ Hilder considers the consequences; Considering ‘deprivation of liberty’ in a family home setting after AGNI (HHJ Burrows).
[13] The legal ramifications of In re Spectrum Plus Ltd are beyond my scope as a non-lawyer, but I’m told this judgment does raise the possibility, in “wholly exceptional” circumstances, of limits to the retrospective effect of judgments from the Supreme Court (or House of Lords as it was then) when the interests of justice demand it.

Fit to discharge or fit to section?

By Kim Dodd, 4th August 2026

The hearing I observed on the morning of Tuesday 28th July 2026 was the latest hearing in a long-running case (COP 13630253) that has been observed and blogged about several times before. At the last hearing in late June, as Elissa Novak explained in her blog (The ‘fit for discharge’ story continues: 10 months on), a plan was anticipated to be in place for P to leave hospital this week to return to her bungalow where she would be cared for by a team of (by then Makaton-trained) carers from the care provider team which has been supporting her in the hospital for the last week. This short blog aims to provide an update on the case in advance of the next scheduled hearing (planned for Friday 21st August at 9.30am, unless an emergency hearing is required in the meantime).

As a quick refresher, P is a woman with diagnoses of mild learning disability, emotionally unstable personality disorder, functional neurological disorder, dissociative disorder and elective mutism. She was admitted to hospital in April 2025 where she has been ever since, despite nobody advancing any argument that it was in her best interests to be in that setting.

The time and date of this hearing had been agreed at the last hearing (which I’d also observed) only a month earlier, so I was quite surprised when it didn’t appear on the listings on the Monday evening. I emailed the court early the next morning and was told: ‘Many thanks for your email. The list has now been amended with this hearing added. I have passed on your request to observe this hearing to Her Ladyship’s clerk who will be in touch’. After some chasing, I finally received the link at 9.24am for the hearing scheduled to start at 9.30am.

The hearing started at 9.38am, and lasted for seventy minutes. The lack of progress since the last hearing was clear, and Lieven J’s frustration was palpable. One of the main issues now is that P’s bungalow is not considered to be in an adequate state for her to return to. On top of this, questions have been raised (by the OS, represented again in court by Victoria Butler-Cole KC, and P’s siblings) about the suitability of the care provider.

It seems these questions have been driven by:

  • the carers’ failure to learn Makaton (despite this having been recognised as a fundamental aspect of suitable care for P)
  • the carers failing to acknowledge or to implement the advice on how to avoid triggering P that has been prepared by P’s siblings, and
  • a recent incident, on 20th July, of restraint (3 carers holding P down) which the OS and P’s siblings considered disproportionate. This incident was captured by the CCTV and had been circulated to all parties, though it transpired that neither the judge nor the OS had seen the footage. The applicant ICB and LA had seen the CCTV and read statements about the incident and reportedly felt, on balance, that the degree of restraint used was proportionate. Lieven J asked for the Order to reflect that all parties should watch the CCTV footage.

Whilst the potential MHA assessment which had been the subject of debate at the last hearing was not mentioned explicitly (and I therefore assume it didn’t happen), Lieven J noted that P being detained under the MHA remained a strong possibility given P’s increasing dysregulation in the hospital setting.

P’s siblings (who again spoke to the judge directly at times, despite being legally represented) were clear that, despite their ongoing desire for P to return to her bungalow, their ‘profound concerns’ were based on a decade of lived experience, which showed that P’s return home had broken down rapidly. They are adamant that the new care providers are ‘the worst agency they’ve been involved with’ and report receiving somewhere between 50 and 100 distress calls each day from P in which she begs them to prevent her having to go home with those carers. Their view is that if P returns home with this care provider, then her quality of life at home would be no better than it would be if she remained in hospital.

Lieven J expressed sympathy for their concerns but emphasised that P is not easy to deal with in her current state and that there had also been concerns about the previous care provider. In her typically pragmatic style, Lieven J also pointed out that the pool of carers the provider pulls from is ultimately one and the same, and that without that care provider there was no other available agency. Lieven J expressed concern that any change of plan with respect to the care-provider would inevitably lead to a six week delay at a minimum, during which time P would be ‘within millimeters of being detained under the MHA’.

To ensure some real progress is finally made, Lieven J proposed that she would chair a meeting next week with the key people involved (but without lawyers; ‘I love lawyers dearly, but they won’t help’). The purpose of the meeting would be for the OS and P’s siblings to talk to the care provider about how a care package can be put in place.

The next hearing in this case is scheduled for 9.30am on Friday 21st August, though Lieven J invited the OS to request an emergency hearing next week (first week of August 2026) should she (the OS) deem it necessary.

I hope to observe the next hearing and to be in a position to provide a further update on what is fast becoming (in my opinion) a case reminiscent of ‘Groundhog Day’, much to the detriment of P.

Kim Dodd has family experience as the daughter of a P in the Court of Protection and has previously blogged for the Open Justice Court of Protection Project. Having retired early from her own corporate career and studied for a Master’s of Law, Kim has developed her interest in law generally and particularly in the area of the law on coercive control. She is on LinkedIn (here).

What happens to restricted patients after AGNI? SJ Hilder considers the consequences

By Gill Loomes-Quinn, 2nd August 2026

At first sight, this appeared to be a straightforward example of the post-AGNI legal framework in practice. All parties in this case (COP 13040188, heard by Senior Judge Hilder on 6 July 2026) agreed that the care and residence arrangements for the protected party (P), a man in his 60s with a moderate learning disability, no longer amounted to a deprivation of liberty following the Supreme Court’s decision in AGNI. [1]

P had previously been the subject of a community deprivation of liberty (COPDOL) order. However, he was not locked in or otherwise prevented from moving around his home. He was not subject to restraint, seclusion or sedation. According to his sister, who was a party to the proceedings, he was happy and settled in his placement. The applicant local authority therefore invited the court to discharge the COPDOL order.

But there was a complication. The P in this case is a “restricted patient”, living in the community under “conditional discharge”.

Restricted patients are individuals who have previously been detained under the Mental Health Act 1983 following serious offending or behaviour that presents a significant risk to others. They may be discharged from hospital subject to conditions designed to protect the public while allowing them to live safely in the community. Those conditions commonly include living at a specified address, taking prescribed medication and avoiding contact with particular individuals. Compliance is typically supervised by a responsible clinician and a social supervisor, with guidance issued by HM Prison and Probation Service. There were just over three thousand “restricted patients” at the end of 2024, according to the Ministry of Justice).

The impact of AGNI on these conditionally-discharged “restricted patients” doesn’t seem to have been considered before.

Background to the case before the court

The protected party in this case had been charged with attempted rape and indecent assault, but found unfit to plead by reason of mental impairment.  After first being detained in hospital under s.37/41 Mental Health Act 1983, he was later granted a conditional discharge by a first-tier Mental Health Tribunal and moved to his current residence. The conditions of his discharge include continuing to live at his current location. He must also permit reasonable access by professionals, comply with treatment plans, and engage with clinical services (all of which he seems to be doing).

P is deemed to lack capacity regarding his care and support arrangements, and in July 2023, the court granted the applicant local authority a final order in COPDOL (used for those deprived of their liberty in community settings rather than in hospitals or care homes). P’s sister was appointed as his Rule 1.2 representative.

The local authority subsequently failed to carry out the required review of the authorisation, leaving P’s deprivation of liberty unauthorised for a period. It made a fresh application on 13 March 2026, shortly before the Supreme Court handed down its judgment in AGNI.

The application was initially dealt with under the streamlined ‘Re. X’ procedure – i.e., without a hearing – but was subsequently ref­­­erred to SJ Hilder because of concerns about P’s status as a “restricted patient” subject to a s.37/41 order.  Before the hearing I observed, SJ Hilder had already invited the Official Solicitor to join the proceedings and made P’s sister a party. She had also directed that the Secretary of State must be notified of the application by 26th June 2026 – also because of concerns about the s.37/41 order

Following the Supreme Court’s decision in AGNI on 2nd June 2026, SJ Hilder directed the preparation of an ‘AGNI update’.  This required the applicant to apply the multifactorial test set out by the Supreme Court in order to determine whether P’s care and living arrangements continued to amount to a deprivation of liberty. The test requires the following:

A. A narrative account, including specifically:

1) a description of P’s home setting;

    2) an itemised list of restrictions in place for P, including specifically any physical restraint and/or CCTV monitoring;

    3) an account of any medication taken by P, including how frequently and in what circumstances PRN medication has been administered in the last 6 months.

    4) An account of P’s discernible understanding of, and response to her/his care and living arrangements.

    B) The applicant’s position as to whether P is deprived of her/his liberty as per AGNI.

    The applicant’s position is  that P lives in an “ordinary bungalow” that he has successfully occupied alone for several years. Restrictions are in place for reasons of “care, support, welfare, and risk management”. They are “not punitive” and, as the alternative may be a recall to detention, the arrangements may be said to promote rather than restrict P’s liberty. Supervision is described as “supportive” rather than “coercive” and P moves freely around his home, with participation in community activities being encouraged. There are no locked doors, physical or chemical restraints or isolation, and the arrangements are described as “typical” for someone with P’s needs, vulnerabilities and conditions of discharge[2]. Indeed, the applicants contend that the arrangements are far removed from the paradigm case of a prison cell in AGNI.

    The evidence of P’s wishes and feelings pointed in the same direction. Reports from his support staff, psychiatrist and social supervisor consistently described him as happy in his placement and positive about both his home and those who support him. He was said to be “settled, stable, and content”. There had been no attempts to leave, no refusals of support and no indication that his care arrangements caused him distress. Nor was he prescribed medication that might suppress his ability to express his wishes or feelings.

    Taken together, the evidence led the local authority to conclude that P was no longer deprived of his liberty under the post-AGNI framework. It therefore invited the court to:

    • Grant permission for the LA to withdraw the application for authorisation of a DoL.
    • Discharge the Official Solicitor (if appointed).
    • Conclude the proceedings.
    • Make no further welfare orders.

    The hearing

    The hearing was listed for 14:30 and began at 15:10 with the court clerk explaining that SJ Hilder had so far had a “very, very heavy day”. The parties were:

    • The applicant local authority (Wigan Borough council) represented by  Matthew Stockwell,
    • P (the first respondent) who was not present in court and was unrepresented – the Official Solicitor having declined to act on the basis that the relevant financial criteria had not been met;
    • P’s sister (the second respondent), a litigant in person.

    Counsel for the LA  outlined their position, specifically that the requirements for a DoLS authorisation have been changed by the decision of the Supreme Court in AGNI and as a result P is no longer to be considered as deprived of his liberty. He acknowledged P’s “slightly curious” position, in being subject to conditions attached to his conditional discharge and said this puts a “slightly different complexion” on the (DoLS) restrictions. The judge reflected back her understanding of his position as being that “while there’s an element of coercion to the conditional discharge, I think your position is that’s irrelevant because he’s happy to stay there anyway?”.   Counsel for the LA  confirmed P appears happy and content and that rather than having the effect of constraining his liberty, the restrictions in place allow him to enjoy his freedom.

    Senior Judge Hilder accepted the broad thrust of the local authority’s submission but she considered that the restrictions arising from P’s section 37/41 conditional discharge presented a more significant obstacle to discharging the COPDOL order right away.

    SJ Hilder pointed out that “the Mental Health Tribunal’s position was it was waiting for DOLS to be in place before it discharged P from detention. The DOL order put boundaries on P”. Those were:

    • He must reside in his current home and allow people to enter.
    • He must comply with medication and other treatment.
    • He has to engage with, and meet his clinical team.

    None of these boundaries are time-limited so they continue to apply.

    This framework of boundaries imposed by the DoLS Order reproduces the conditions of P’s conditional discharge.  A finding that, post-AGNI, P may no longer be deemed to be deprived of his liberty may therefore pose a significant risk to the set of legal restrictions that enable P to continue to live in the community instead of being returned to detention. That is certainly one reading of the Guidance from HM Prison and Probation Service, which says: “If the DoLS has expired then the implication will be that the Secretary of State will seek the recall of the patient to hospital due to the risks the patient may pose to themselves or others if they were not subject to the restrictive measures imposed by the DoLS authorisation. Please refer to Section 8 of this guidance for further actions where the DoLS has lapsed and will not or cannot be renewed and restrictive measures are still required to keep the patient and the public safe.”

    In this case, AGNI means that the DOLS “will not or cannot be renewed” and it seems that  “restrictive measures” are not required.

    The  most recent “Supervised discharge guidance” (18th February 2026)  – guidance that uses the Cheshire West definition of deprivation of liberty – says specifically: “If a team is considering seeking the removal of, or addition of, the conditions amounting to a deprivation of liberty for a patient they should contact the MHCS [Mental Health Casework Section]  to discuss the matter” (7.5).

    Strictly speaking, that guidance does not apply to the present case.  No one is proposing to remove or add conditions. Rather, the conditions remain unchanged, but their legal character has altered because of AGNI.

    Nonetheless, it’s not surprising that SJ Hilder’s position was that both the Secretary of State and P’s Responsible Clinician should have an opportunity to make submissions before the proceedings were concluded. And while there seemed to be some confusion in court over whether (and when) these bodies had been made aware of the case it was agreed that neither of them had responded.

    The judge therefore made an order stating that the court was considering terminating proceedings with no order or requirements on residence and care, and “wishes to be clear that the Secretary of State and the Responsible Clinician have had the opportunity to make submissions”.  The LA was required to “provide a copy of this Order to the Secretary of State and Responsible Clinician within 3 days of themselves receiving a copy. Both should then be invited to provide to the court in writing by 4pm on 3rd August 2026 an explanation of any submission they wish to make. There was also a final provision that the matter be referred back to the judge for her to consider on the papers – as she confirmed that she didn’t intend to “trouble” the parties to come back to court “unless I need to”.

    In subsequently explaining the proceedings that had just taken place to P’s sister (who, as a litigant in person, indicated that she had struggled to follow) the judge clarified, in lay terms,  the role of the DoLS in the framework of conditions and “boundaries” implemented with the aims of enabling P to live in the community while managing the risk of any further offending and thereby keeping the public safe. She concluded with an encapsulation of the challenge posed to multiple statutory agencies by the impact of AGNI on this case: “The bottom line here is no one wants a disaster to happen because boundaries have been taken away. Least of all P”.

    Reflections

    This case is an ‘on the ground’ illustration of the seismic shift in what it means for disabled people to be deprived of their liberty post-AGNI. The complexity in the particular background to this case (notably the restrictions imposed by the s.37/41 conditional discharge and the interaction between this legal framework and the DoLS) highlights the scale of the potential impact of AGNI, and the task facing public bodies across health and social care as a result: to avoid “disaster” while navigating this new legal terrain.

    Gill Loomes-Quinn is co-director of the Open Justice Court of Protection Project. She is a disabled scholar-activist with an interest in the impact of mental capacity law on the ‘Social Voice’ of disabled people and communities.  She can be contacted through the Project.

    [1] I have used contemporaneous notes and a summary of the case provided by HHJ Hilder at the start of the hearing along with the applicant’s position statement (provided after the hearing) to put together this background. As recording of court proceedings is, of course, not permitted any quotes from the hearing itself are as accurate as possible but should not be assumed to be verbatim.

    [2] Note that this construction of P’s living arrangements seems illustrative of a return to reliance on the concept of “relative normality” to determine whether an individual’s circumstances represent a deprivation of liberty. According to this approach (applied by LJ Munby on appeal in Cheshire West & Chester Council v P [2011] EWCA Civ 1333), the relevant comparator to use when determining the “normality” of a disabled person’s living conditions is not the “able-bodied man on the Clapham Omnibus” but rather a person with similar disabilities to herself or himself: arguing that the disabled person is “inherently restricted” by virtue of their impairment [35] – and therefore that they may be deprived of their liberty due to the impact of their impairment without this being attributable to their living conditions or social arrangements . This approach has been widely criticised as individualising and medicalising the concept of disability; and failing to recognise the impact of living arrangements and other social factors in depriving a disabled person of their liberty (e.g., Clough, 2015; Series, 2022). In overturning the relativist approach at the Supreme Court (P v Cheshire West and Chester Council [2014] UKSC 19), Lady Hale appealed to the universality of human rights – notably Article 5 – stating that “what it means to be deprived of liberty must be the same for everyone, regardless of whether or not they have physical or mental disabilities” [46]. In substituting a ‘relative’ comparator in the post-AGNI understanding of the ‘normality’ of a person’s living condition, it appears worryingly as if the court may be abandoning the universality of human rights claims in the post-carceral care system and returning to a framework where the rights of a disabled person are fundamentally framed by their impairment and are unequal to those of a non-disabled person.

    The irony and the AGNI: After years of traumatic DOLS experiences, P no longer meets the criteria

    By Sandra and Joe Preston, 31st July 2026

    Joe’s mother has Alzheimer’s disease and has been subject to multiple short-term DOLS assessments over the course of almost five years, both before the conclusion of s.21a proceedings on 10th June 2025 and subsequently.  We have all experienced these assessments as intrusive, distressing and unhelpful.  And now, after all that, we are told that post-AGNI, she no longer meets the criteria for being deprived of her liberty.

    We wrote about the s.21a proceedings in our previous blog post (A court hearing and 23 visits from 16 officials: Family doubt that ‘Deprivation of liberty’ is working in the public interest).  At that point, Joe’s mum had been  living in a care home where she was safe, cared for and generally content. The only thing that caused her real distress was the Deprivation of Liberty process itself – when someone from the Supervisory Body took it upon themselves to interrogate her as to where she would like to live.  This could unsettle her for days at a time. The first DOLS authorisation was issued in May 2021, valid only for three months “to ascertain whether P’s behaviour constituted an active and consistent objection to her placement”.   This was the beginning of a period of short-term DOLS assessments involving 23 visits from 16 different officials and a s.21A court hearing, before remaining in her placement (her purported ‘deprivation of liberty’) was determined to be in her best interests.

    We hoped that, after this court hearing, and a carefully worded order from the judge, that would be an end to repeated and disruptive short-term DOLS assessments and authorisations for her and that she would continue to reside in the care home where she had spent four and a half years living as happily as her condition would allow. 

    Sadly, this was not to be.  Just weeks later Joe’s mother had a series of unexplained falls in her care home, the most serious of which led to her being hospitalised with subdural haematomata.  She spent several weeks in hospital because her care home admitted that her care needs had increased beyond what they could provide and a new placement with 1:1 support had to be identified.  The lengthy hospital stay meant that a short-term DoLS authorisation had to be put in place, and once she took up residence in the newly identified nursing home a further DoLS was authorised for six months.   

    A period of relative stability followed while Joe’s mother adjusted to her new environment.  The challenge for us was coming to terms with the new phase of her illness – her speech and cognition were severely impaired, her resistance to personal care was challenging, covert medication had to be authorised, and her falls risk meant 1:1 support was essential.  We breathed a huge sigh of relief when the Best Interests Assessor (BIA) rang in May 2026 to say they had just visited Joe’s mother and were going to recommend she be granted a 12-month standard DOLS authorisation.  This would have been her first 12-month authorisation in five years, had it been finalised before 2nd June 2026.

    On 2nd June 2026 the Supreme Court handed down the AGNI judgment and we were left wondering whether Joe’s mother would continue to be deprived of her liberty as a matter of law.  Nothing had changed in the nature of her care or confinement and the Managing Authority told us they would carry on processing their DoLS applications in the same way.  The only guidance we could find left us puzzling over what a multi-factorial assessment would look like and whether Joe’s mother could ever be deemed to give valid consent.

    We were not surprised when the BIA who had carried out the DoLS assessment in May 2026 informed us a few weeks later that they would be conducting a review to determine whether Joe’s mother would still require a DoLS authorisation post-AGNI.  The conclusion was that although she was unable to give valid consent, she was not objecting to her placement and was mostly compliant with her care.  Although there was some resistance to personal care, this was illness-related rather than an objection to her placement; she had a tendency to wander, but was not actively looking for the exits or attempting to leave; her medication was administered covertly on health grounds and did not include any chemical restraint type medication; 1:1 support was in place for her safety rather than to manage challenging behaviour.  Her current care arrangements were therefore deemed proportionate to her needs, given her diagnosis and condition, so she no longer met the criteria for needing a DoLS authorisation.

    REFLECTIONS

    We have asked ourselves umpteen times over the years what DoLS have ever done for Joe’s mother. Our Court of Protection experience left us with a very jaundiced view of the whole process which, from our perspective, seemed to benefit lawyers, IMCAs and RPPRs more than it did the vulnerable person whose freedom was restricted because they lacked the mental capacity to consent to their care or treatment.  How ironic in Joe’s mother’s case that something that took so long and was so painful is no longer considered to be necessary.

    Hopefully now, post-AGNI, we can be left to care and advocate for Joe’s mother as we have always sought to do, and the DoLS focus can rightfully shift to those vulnerable individuals who really are deprived of their liberty and don’t have anyone to advocate on their behalf.  As family members, we are glad to be rid of DoLS and confident that our own curiosity and vigilance will help us to raise and deal with any safeguarding concerns, should they arise in future.


    Joe and Sandra Preston     are the son and daughter-in-law of a former protected party.  They can write about the Court of Protection proceedings under their own names because they successfully applied for a variation to the Transparency Order (you can read about how they did that here: Making it possible for families to tell their Court of Protection stories: How we got the reporting restrictions changed (while P is still alive)).  They  can be contacted through the project email on openjustice@yahoo.com.

    “What your mother wants and what is best for P may not be the same thing”: Judge seeks family engagement and clarification of immigration status 

    By Maria Maier, 30th July 2026

    The young man at the centre of this case lacks capacity to make his own decision about where to live.  This hearing (COP20029884 before District Judge Clarke on 16 of July 2026) was a directions hearing following an application from the Local Authority to move P out of the family home and into an assisted living facility. The key issues relate to P’s immigration status and the lack of engagement from his family

    I sent my email request to observe at 8:56am on the morning of the hearing. I copy and pasted the template email from the OJCOPP website and sent it to the court at First Avenue House in London, the headquarters of the Court of Protection, where this case was being heard. I received the joining link at 1:39 pm, together with the Transparency Order. Although I had requested other documents (as set out in the template request), I did not receive any. All parties attended the hearing in person, and I was the only observer. P’s brother was also present, and he reported on the family’s views. However, as he was sitting the furthest away from the camera, I often struggled to hear him clearly. The hearing was initially delayed, and, due to technical difficulties, I was not admitted until 2:17 pm.

    When I joined, DJ Clarke asked me to turn on my camera, introduce myself and confirm that I had read and understood the Transparency Order. She then asked each party to re-introduce themselves and requested that counsel for the Local Authority, Ms Amelia Culverwell, provide a summary of the issues while she read the Local Authority’s draft order. The Local Authority in this case was the London Borough of Hammersmith and Fulham. P was represented through the Official Solicitor by Ms Davies. Unfortunately, Ms Davies was not visible on camera, and I was unable to hear her first name clearly. As there appear to be two Court of Protection barristers with the surname Davies, I have not identified her further.

    Ms Culverwell explained that this was a directions hearing at which the Local Authority was seeking directions on an application to move P to an assisted living facility.  The Local Authority’s primary concerns about P living at home related to his immigration status and the lack of engagement from his family.

    Counsel explained that P does not currently have leave to remain in the United Kingdom and that no attempt has yet been made to regularise his immigration status.

    The Local Authority also submitted that the limited communication between P’s family and professionals has affected P’s engagement with Local Authority services and with his college. I learned through the course of the hearing that P has been assessed to lack mental capacity to make decisions about where to live and receive care.

    By this point, DJ Clarke had reviewed the draft order. She was critical of the lack of detail and information it contained. One of the first issues she raised was the fact that the draft order referred to two possible placements (Placement A and Placement B). She asked the Local Authority whether it had decided between the two.

    Ms Culverwell explained that a place had since become available in Placement A. The Judge then asked whether Placement A placement was equally in P’s best interests. In particular, she asked whether the commute to college or the distance from P’s family home would be longer, and whether the placement would also consist exclusively of male residents.

    The Local Authority confirmed that the journey from both placements to college would take less than an hour, that the distance from the family home was roughly the same and that both placements were male-only. DJ Clarke emphasised the importance of college in P’s life, providing not only an educational environment but also support for P’s communication and development.

    The Court also considered P’s level of independence. P is at an age where many adults would ordinarily be living independently, but he does not currently have the skills necessary to do so. It is not clear whether he is developing those skills while living at home, particularly given the concerns about his education and the instability of his care arrangements.

    DJ Clarke then asked whether the proposed placement was intended to be short-term, with the possibility of becoming long-term, or whether it was intended to be long-term from the outset. The Local Authority confirmed that it was initially a short-term placement, with the possibility of becoming long-term if everything went well. Counsel stated that the Local Authority hoped that the move could take place ‘sooner rather than later’.

    DJ Clarke then turned to P’s immigration status. She asked the Local Authority to confirm whether it was seeking a best-interests decision that it was in P’s best interests for his family to engage with professionals and instruct Bindmans solicitors in relation to his immigration status. The Local Authority confirmed that this was the position.

    This was not simply a technical immigration issue. Because of his immigration status, P currently has no access to benefits. The Local Authority considered that it was in P’s best interests for his immigration position to be resolved and have agreed to fund legal assistance in relation to the matter.

    DJ Clarke then summarised her view of the draft order by stating: ‘This order needs work frankly, but I have an idea of what you want to do and achieve.’

    As P’s brother was present at the hearing, the Judge asked him to explain the lack of engagement from P’s family. He explained that P’s mother had been hospitalised and that he and another brother, who was overseas at the time of the hearing, had found it ‘tough’ to care for P.

    DJ Clarke acknowledged the difficulties faced by the family but questioned why they had not engaged with professionals when respite accommodation had been offered.

    She questioned why P’s mother, who had strong views about what was in P’s best interests, was not present at the hearing. I was unable to hear all of P’s brother’s explanation, but he informed the Court that his mother had still been asleep when he tried to tell her about the hearing and that he had been unable to enter the house to wake her.

    DJ Clarke then asked the brother what his mother’s views on the placement were. He stated that his mother thought P should remain at home. However, he did not fully know her reasons why.

    DJ Clarke explained that, if there continued to be a lack of engagement from the family there is a risk that the families views will not be known and therefore not included in decision-making. She stated that there was a risk that P could ultimately be placed somewhere with which his family did not agree, because the Court was unable to properly understand their views.

    DJ Clarke asked how communication between the family and local authority could be improved. P’s brother suggested that it would be beneficial for there to be one designated point of contact between the family and professionals.

    The family had been provided with an ‘expectations document’ before the hearing detailing how the family were expected to engage and communicate with the LA. DJ Clarke reminded P’s brother that the family needed to read and understand it.

    The Judge went on to explain that, from her perspective, P’s mother’s hospitalisations had meant that other family members had been required to take on aspects of her caring role. DJ Clarke observed that this had created ‘unsettlement’ for P, as ‘his care is patchy’.

    She considered that this instability at home is having a knock-on effect on P. The Court was informed that P has been suspended from college because of a lack of engagement and attendance. Although I was unable to hear all of P’s brother’s explanation, it appeared that P had not been attending college because P’s mother believed that he was not receiving the correct support and that his teachers were not adequately trained to support him. DJ Clarke also raised concerns about the impact of P’s mother’s resistance to her own diagnosis and treatment on the stability of the home environment.

    The Judge further explained to P’s brother that, because of P’s immigration status, he currently has no access to benefits. She stated that this was another indication that arrangements were not operating in P’s best interests. The Court was also informed that P’s mother objects to steps being taken to resolve P’s immigration status and is resistant to an application being made for him to obtain leave to remain. P’s brother was unable to explain why this was the case.

    Counsel for the Local Authority explained that the family’s lack of communication and engagement had also made it difficult to complete mental capacity assessments and other assessments required in connection with a move to a new placement.

    DJ Clarke summarised the difficulty by stating: ‘the difficulty is that what your mother wants and what is best for P may not be the same thing. The decision that I have to make is what is best for P.’

    She then asked P’s brother what he thought his mother needed in order to engage with the proceedings.

    P’s brother stated that his mother needed to speak to someone in person, as he was concerned that her feelings are not being heard.

    The Judge replied that ‘today would have been the best opportunity for her views to be heard’.

    She clarified that no decisions would be made at the hearing itself but explained that the Local Authority was asking the Judge to approve the issues set out in the draft order.

    The Judge directed the Local Authority to create a communication plan and to obtain P’s mother’s views orally. This should also identify a known and effective method of communication, how frequently communication should take place and how documents and information should be shared. The aim is to reduce the difficulties that have previously arisen between the family and professionals. Counsel for the Local Authority then asked the family to agree among themselves who should act as the main point of contact. The deadline for this was agreed as 20th July.

    If the family could not agree on a single point of contact, those individuals who wished to take on that role could put themselves forward and the Local Authority could then select one person.

    A virtual meeting between the Local Authority and the family was also listed for 30th July to discuss the family’s views.

    In the meantime, DJ Clarke directed the Local Authority to provide an interim care plan, a transition plan for the proposed move and further information about whether a deprivation of liberty authorisation under the Deprivation of Liberty Safeguards was already in place or whether one would be required.

    The Judge then turned to the Official Solicitor to ask whether P’s wishes and feelings had been ascertained. Ms Davies explained that the Official Solicitor had not yet been able to obtain P’s wishes and feelings because they had been unable to meet with P. Concerns were raised that the family may have been obstructing the Official Solicitor’s attempts to ascertain P’s views.

    DJ Clarke informed P’s brother that the Official Solicitor must be able to visit P at home without family members being present in order to obtain his wishes and feelings independently. She clarified that ‘this Court does have powers, which it doesn’t yet wish to exercise, to compel this’.

    The Judge emphasised that this process needed to be independent from P’s mother.

    Reflections

    This was one of the most challenging hearings I have observed. Multiple interrelated issues, including P’s proposed placement, immigration status, education, family engagement and wishes and feelings, were considered simultaneously, and the conversational nature of the hearing made it more difficult to follow how each issue informed the next.

    However, I admired the way DJ Clarke managed this complexity. She gave P’s brother an opportunity to explain the difficulties faced by the family and made clear that P’s mother’s views were important. The Judge did not simply treat the family’s lack of engagement as a reason to disregard their views. Instead, she actively explored what might make it possible for P’s mother to participate and directed the Local Authority to create a communication plan to ensure that her views could be heard. (For another example of DJ Clarke’s judicial skill, see see this blog post about “DJ Clarke in action”.)

    At the same time, DJ Clarke remained focused on the central question before the Court: what was in P’s best interests? She explained clearly to P’s brother that what his mother wanted and what was best for P might not be the same thing. I thought this struck an important balance. The Court was not there to determine whether P’s family were ‘right’ or ‘wrong’, but to make decisions based on P’s own best interests.

    The hearing was also a stark reminder that disagreement and lack of engagement are not the same thing. Family members may have strong views about what should happen, but if they do not engage with professionals or with the proceedings, there is a risk that those views will not be properly understood or taken into account. In P’s case, limited engagement had already contributed to difficulties assessing his needs, understanding his family’s position and obtaining his own wishes and feelings.

    I hope that the practical plan put in place by DJ Clarke will enable the family and professionals to collaborate effectively and ensure that the Official Solicitor can obtain P’s wishes and feelings. Ultimately, the decisions being made are about P’s life, and his voice must be at the centre of those decisions.

    Post Hearing Actions

    Following the hearing, I learnt that under Rule 5.9 of the Court of Protection Rules 2017, non-parties who observe a public hearing are entitled to request a copy of the approved order. As I had not received any documents beyond the Transparency Order before the hearing, I thought obtaining the approved order would help me better understand the details of the case, the directions that had been made and the next procedural steps.

    I sent the following email to First Avenue House at courtofprotectionhearings@justice.gov.uk:

    Dear Court Staff,

    Please may I have the approved order from this hearing which I observed on 16 July 2026.

    My request is made as per COP Rule 5.9.

    Supply of documents to a non-party from court records

    Rule 5.9(1): Subject to rules 5.12 and 4.3(2), a person who is not a party to proceedings may inspect or obtain from the court records a copy of any judgment or order given or made in public.

    Thank you for your support of transparency.

    I will amend this blog if, when I receive this document, I learn of any important additional details or become aware of any errors in my report. I hope the approved order will give me a better understanding of how the Court converts the often conversational and wide-ranging discussion that takes place during a directions hearing into clear, practical actions for the parties.

    Maria Maier is an aspiring barrister with an interest in the Court of Protection. She is currently working as a Relevant Person’s Representative (RPR) and Rule 1.2 Representative for adults who lack mental capacity and are deprived of their liberty under the Mental Capacity Act (MCA).  She has previously blogged for the Project here: Court approves sedative PRN medication  and Five Practical Tips For Observing Your First Court of Protection Hearing  She will begin her Bar Course studies in September 2026. Her LinkedIn is here.

    Objections (and breached conditions) after AGNI

    By Celia Kitzinger, 17th July 2026

    District Judge Glassbrook is a very engaging judge to watch because of the extent to which he “shows his working” as he listens to competing submissions, tests arguments against the law, and makes his reasoning transparent. 

    I don’t know what the judge will eventually decide in this s.21A case – it will be back in court later this year –  but in terms of everyone’s concerns about how AGNI will be interpreted in the Court of Protection, it’s an interesting case.  Although P’s ‘deprivation of liberty’ is currently covered by a Standard Authorisation, the local authority has suggested that P may no longer (under the AGNI criteria) be deprived of his liberty. The judge disagreed, saying: “The Supreme Court said that if there are objections then, on the face of it, we’ve got deprivation of liberty”.

    Despite the obvious importance of establishing the legal basis of P’s confinement (is it or isn’t it a ‘deprivation of liberty’?), this judge – like others I’ve watched since AGNI –  gave priority to considering whether P’s residence and care arrangements were in his best interests and the least restrictive necessary.  That was the only reason it was in court today – called in by the judge after the parties had made an application to vacate it.

    Background

    Proceedings in this case (COP 20026819) began about six months ago, in January 2026.  The protected party is a man in his seventies with dementia and several other medical problems, including insulin-dependent Type 2 diabetes. Until a few years ago, he was living alone at home. He was admitted to hospital twice, first due to being “disoriented” and wandering the streets, and then because he was found collapsed on the stairs outside his neighbours’ flat.  After the second admission it was decided that a return to his own flat was “not viable”.

    He’s been in the current placement for almost exactly two years – following a move from a different care home, where he lived for nine months after hospital discharge. His current care home is closer to his son, and I think that was the reason for the move.

    It’s clear that P is objecting to the current arrangements.  He’s said that he feels restricted in his movements, would like to go out more often, and that not being able to go out “wears me down”. He’s not allowed to leave the placement without support and the placement has said that staff shortages prevent them from being able to take him out. He’s also been verbally and physically aggressive towards staff and other residents and has been prescribed Risperidone which has “helped to reduce challenging behaviours”.

    The current care home served notice on him almost a year ago – apparently, he is “intimidating” other residents.  At the moment there’s no alternative accommodation available. Several care homes have been approached without success; and “further assessment is required to determine whether community living would be appropriate”. His flat – the place he called “home” – is no longer available to him.

    There’s been some uncertainty about his capacity to make decisions regarding residence and care.  It’s reported that when he was visited in February by his Accredited Legal Representative (ALR), he “presented very well and answered questions realistically” and “did not evidence confusion or disorientation during the meeting”.  In May, a social worker reported that there has been “an improvement in [P’s] presentation, insight into his condition and need for support”.  It had seemed possible – and his legal representatives had argued –  that P might be found to have capacity to make his own decisions about residence and care. 

    But the situation changed a few days before the hearing I watched on 1st July 2026, when the parties received an expert capacity report finding that P lacks capacity to make decisions about his residence and care.

    The parties had made an (agreed) application to vacate this hearing because they wanted time to consider the report before deciding on their positions. The judge refused the application to vacate because he was concerned about the restrictions P was facing, and about the non-compliance with the ‘condition’ he’d imposed on the Standard Authorisation.

    The hearing

    The judge focussed on what is going on for P right now and wanted to address it immediately, rather than wait for another couple of months.  In particular, he was concerned that, irrespective of P’s ‘capacity’ to decide for himself on residence and care, P should not be subject to restrictions on his access to the community that are not in his best interests. 

    The  ‘condition’ imposed on the Standard Authorisation

    A couple of months earlier (on 2nd April 2026), pending final determination as to whether or not the “capacity” condition of the Standard Authorisation is met, the judge imposed a “condition” on the authorisation currently in place – a condition designed to address P’s objections to where he currently lives. At the beginning of the July hearing, DJ Glassbrook drew attention to the fact that this condition has not been complied with. 

    The condition required the nursing home to take P out “at suitable intervals and to maintain a log of each excursion and activity offered, and P’s response to it”.  But “the log of community access is not being provided”, says the ALR – and that’s what caused the judge concern.

    The judge turned to the bundle: “On page 84, paragraph 2, it says that when asked about support to access the community, P advised that he’s not currently receiving any assistance with community access – and he expressed a desire to engage in the community and make new connections. The notes also say that the nursing home has offered P community access “two or three times a week” and that he declines the offer.  So, I’m left with a question: does he actually go out? (It later becomes apparent he doesn’t, and hasn’t been out of the placement “since Christmas”.) Is there actually a separate log of each offer and response as the ‘condition’ requires? And on a broader front, just what is it that he’s offered?  If the offer is always to go to a particular café that he doesn’t like, there no surprise that he doesn’t go. In April, I was told that he hasn’t been out since December.  Let’s turn to the psychiatric report. There’s a recommendation: ‘non-pharmacological support for well-being, including safe access to the community, the absence of which seems to be adversely affecting his mood’.  That’s dated 12th June, so three weeks ago or thereabouts.  Has he been out? The assertion, ‘he’s offered activities two or three times a week’ doesn’t really do it for me.  It says here: ‘he voices a clear wish to relocate, saying he currently spends much of his time inactive and feels restricted’“.

    Here’s some of the courtroom interaction (as best I could capture it).

    Judge and ALR

    Judge:  You’ve very helpfully raised the point that there’s no log being kept of offers of activities in the community – contrary to the condition of the Standard Authorisation.  Let me ask you a legal question. If there’s a condition on a deprivation of liberty and that condition is not satisfied, what’s the legal effect of that?

    ALR: The Court would have to consider the position of the Standard Authorisation.

    Judge: There could be an argument that if the condition is not met, then the deprivation of liberty becomes unlawful.

    ALR: Yes, I agree.

    Judge: And that means the local authority is at risk here.

    ALR: I couldn’t disagree with that.

    Judge: The point of that condition wasn’t to find out if the local authority and the managing authority fancied going along with it. There was no dissent at the time from the local authority.  There was no appeal against it being imposed. It seems to me that it’s absolutely essential that it’s complied with, and if not the ALR must consider her position of what is she going to do about it.

    ALR: Yes.

    Judge: And if the ALR thinks the deprivation of liberty is potentially unlawful, it begs the question in my mind as to why the dickens did the two parties agree to vacate the application.

    ALR: We are facing more of a pragmatic problem. The placement has given notice. There are no other placements available to him. While the situation is as you’ve described it, there is a risk of further disrupting the security of the placement. There is nowhere else for P to go.

    Judge: Just because the placement itself might be at risk, bearing in mind the notice to quit is 11 months old now, is not a good reason to think “oh well, never mind, let’s keep the bloke locked up”.  No. I’m not happy with that.

    ALR:  I’ve heard what’s been said and will be sure it’s passed back.

    Judge and the LA

    Judge: This is your particular responsibility.  In the case of AJ v A Local Authority [2015] EWCOP5, Baker J found that the ultimate responsibility for protecting the Article 5 rights of those subject to deprivation of liberty lies with the local authority. I’m not convinced at the moment that this local authority has met its obligations.

    LA: Sorry, Judge. I can’t argue with that at the moment.  The fact that the condition attached to the authorisation hasn’t been met – that’s something I’ll have to go back to the allocated social worker to discuss.  It was agreed in April and the Nursing Home was instructed, I believe.

    Judge: Do you agree that if the condition isn’t met, then the deprivation of liberty becomes unlawful?

    LA: It’s not something I’ve faced before. I don’t know.

    Judge: What I’m after mainly is what the dickens are we going to do about it?  My wish is for it to be put right without me having to make more of a nuisance of myself, but if it’s necessary to have the Director of Adult Social Services and the Director of the Nursing Home to come to court and explain it, we can do that.  It may be that if you mention it, that might drive the message home.

    Counsel for the LA reported it is willing to fund additional community access “where appropriate” – but no details or time scale were forthcoming.

    The hearing continued with expressions of concern (from the judge) about the non-availability of an alternative placement (from the local authority)  and expressions of concern about P not leaving the care home, problems with his hearing aids, and a lack of credit on his phone.

    AGNI

    On the matter of ‘deprivation of liberty’, the judge remarked that “subject to evidence, subject to submissions, I certainly get the impression this chap wants to leave where he is. The Supreme Court said that if there are objections then, on the face of it, we’ve got deprivation of liberty. So, my provisional view, subject to arguments, is that we still have a deprivation of liberty.  [Counsel for the ALR], you’re nodding. [ALR: Yes.  LA: (pause) Provisionally, yes.]

    But in their Position Statement, the local authority addresses AGNI head on and (provisionally) seems to suggest that P may no longer be deprived of his liberty. 

    “The Supreme Court has confirmed that there is no single universal acid test for deprivation of liberty. The Court must examine the practical reality of the arrangements rather than theoretical possibilities.  Accordingly, the Court should consider what actually occurs on a day-to-day basis including whether [P] seeks to leave, how staff respond in practice, whether restraint is routinely exercised and whether the arrangements reflect ordinary care for a person with his needs.  The Local Authority submits that the evidence now justifies careful reconsideration of whether [P] remains deprived of his liberty. Whilst staff would intervene if immediate safety concerns arose, the current evidence indicates a settled resident, reduced restrictions, increased opportunities for community access and an absence of routine coercive measures.  Whether those arrangements amount to a deprivation of liberty requires fresh analysis applying AGNI rather than historic assumptions.  Regardless of the legal characterisation of the arrangements, the Local Authority continues actively to seek a suitable long-term placement.”

    It seems from this, and other hearings I’ve observed since AGNI, that P’s ‘objections’ may play a key role in determining whether or not the arrangements for P’s care constitute ‘deprivation of liberty’. Of the three post-AGNI hearings I’ve blogged about, the first reports on a case where the judge determined that there is a ‘deprivation of liberty’ for a person undergoing serious medical treatment under general anaesthetic in hospital, in large part because he objected – to the extent that treatment was possible only with restraint (‘Judge authorises medical treatment and DOLS in hospital”); and the second found no deprivation of liberty for a young woman living under constant supervision and control (including CCTV cameras) in an annex to the family home, and it was significant to his decision that she did not object – and the nature of her disabilities may mean that she has no liberty to lose anyway (Considering ‘deprivation of liberty’ in a family home setting after AGNI). It will be interesting to see how the apparent reliance on ‘objections’ as a key determinant of ‘deprivation of liberty’ continues to develop in this and other cases.

    I’ll look out for the next hearing and hope to observe it.

    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)