Promoting Open Justice in the Court of Protection

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

By Celia Kitzinger, 9^th 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 1^st 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 17^th 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 2^nd 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 2^nd 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 27^th June 2025 and not decided until more than a year later on 1^st 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 21^st January 2026 and 1^st 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 4^th 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 7^th 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 1^st 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 21^st 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 2^nd 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 20^th July 2026.
[6] The initial application was to challenge the standard authorisation granted by the local authority that came into force on 7^th November 2024. The proceedings were subsequently reconstituted as a challenge to the standard authorisation dated 18^th 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 28^th 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 21^st 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 20^th 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 21^st 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 26^th June 2026 – also because of concerns about the s.37/41 order

Following the Supreme Court’s decision in AGNI on 2^nd 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” (18^th 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 3^rd 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 10^th 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 2^nd 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 12^th 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)

The ‘fit for discharge’ story continues: 10 months on

By Elissa Novak, 15th July 2026

In April 2025, a woman with diagnoses of mild learning disability, emotionally unstable personality disorder, functional neurological disorder, dissociative disorder and elective mutism, was admitted to hospital. In September 2025, she had surgery and was soon afterwards declared medically fit to leave. But the discharge did not happen. Instead, the case became mired in the unresolved practicalities of getting her home resulting in a series of increasingly urgent Court of Protection hearings.

Her siblings had been trying throughout to make the people around her understand who she is and what she needs. During a hearing on the 5th June 2026, her sister told the court that their lives had been “completely changed” by what had happened (see the previous blog post “Fit for Discharge for the last 8 months”).

By the time I observed the next hearing about three weeks later, on Monday 29th June 2026, everyone appeared to agree on the path needed to get her home. But after months of delay, another risk, this time detention under the Mental Health Act 1983, was in danger of overtaking the plan entirely.

This hearing, like the one before it, was before Mrs Justice Lieven. It had been due to start at 2pm, but an administrative error meant it had appeared in the public listing as starting at 10.30am. In the event, it began at 2.30pm, with Lieven J commenting that she had received the draft order “literally as [the case] was called on”.

There were 27 people on the link, including observers and representatives for the parties: Aswini Weereatne KC for Suffolk County Council; Anna Bicarregui for P’s siblings; Tor Butler-Cole KC for the protected party, via her litigation friend the Official Solicitor; Rhys Hadden for the ICB and Essex Partnership; Steph Collier for the Hertfordshire Partnership NHS Foundation Trust; and a representative for the hospital where P is currently an inpatient.

Proceedings began with something approaching good news. Mr Hadden, summarising where things currently stood, identified the headline points. A new care provider had been identified and would begin shadowing P in preparation for discharge. Progress had been made towards agreement on CCTV and body-worn cameras and, most significantly, there was now a proposed discharge date during the week commencing 27th July.

It became apparent at this early stage of the hearing that Lieven J had no intention of allowing valuable court time to disappear into lengthy explanations. When Mr Hadden began to explain the background to the proposed CCTV arrangements, she stopped him. “You don’t need to give me any of the reasons…I’ve read the papers.”

Mr Hadden then introduced a new complication. Since the last hearing, a Mental Health Act assessment had been requested by the hospital, creating a very real risk that P could face further prolonged detention in hospital. The parties, he said, wanted the court to authorise, on an interim basis, P’s deprivation of liberty in hospital in the hope that if present restrictions were approved the Mental Health Act assessment would become “redundant”.

Lieven J fixed immediately on the proposed discharge week. She would “very, very much prefer” P to leave hospital in the week commencing 27th July, as she would still be available to hold a short hearing afterwards “just to see how things are going” as she had “a distinct feeling that the moment I’m off the job things might not happen”. Next, she moved into the “granular detail”, to check that the parties were not merely saying they agreed “for the sake of the hearing” before “reneging later”.

The first question was whether there was a clear plan leading up to the week of 27th July. Mr Hadden said the new care provider would need a nurse to begin observations and that P would need a social story to help her become accustomed to the idea of a new care agency. Lieven J asked if thought had been put into how P would be informed, and apologised for “micromanagement” but said it felt necessary.

She noted that P wanted to leave hospital but was scared of change and could become dysregulated very easily. The proposed solution was a meeting with P’s siblings and those representing her, to work out how she should be told. The new care provider would need to begin observations, train staff in Makaton and prepare psychological strategies to support P through the move. Anna Bicarregui, for P’s siblings, said they were keen for Makaton training to take place and did not understand why it hadn’t yet started. Lieven J requested “less chat and more action” and instructed the parties to draw up a dated plan that afternoon.

This was my first time observing Lieven J, and if it’s permissible for observers to pick a favourite judge she might just be mine. Direct, practical and plainly impatient with delay, she consistently kept proceedings focused on P. This instinct was evident a few minutes later, during what might otherwise have become a drawn-out discussion about the logistics of installing CCTV in P’s hospital room. Mr Hadden began to explain that the timing depended on the hospital estate team being able to install the equipment. “Well, it will happen this week,” Lieven J replied. “To be frank with you, I could do it on Amazon this week. It’s not rocket science.”

Mr Hadden then briefly attempted to explain that fixed CCTV in a hospital room was not quite the same as buying domestic equipment online. “No, no,” Lieven J interrupted. “I understand…they could do it in two days.”

Lieven J then turned to the safeguards that would have to sit around CCTV. She felt it had advantages over body-worn cameras as it was less easy to delete footage, could not be switched on and off at will, and would record the wider context of what happened in P’s room. But those advantages depended on the footage actually being preserved.

Mr Hadden suggested adapting the existing body-worn camera care plan, but Lieven J was clear that this would not do. CCTV needed its own protocol, particularly because P might become dysregulated when she learned about the camera. Tor Butler-Cole KC for P via the Official Solicitor, added that there should be provision for footage to be kept for longer if there was an incident or injury. Lieven J wanted to avoid “critical incidents” being “randomly deleted” and agreed that there should be an automatic storage period and a process for preserving footage beyond that if anyone said something had happened.

On the deprivation of liberty, Lieven J made it clear that she was “not going to make a ruling on the applicability or otherwise of the Supreme Court judgment to the facts of this case”. On the facts before her, she considered it “necessary and proportionate” for P to be deprived of her liberty in hospital on an interim basis: “I’m not going any further than that.”

Mr Hadden then returned to the Mental Health Act assessment, explaining that it had been triggered following increasingly serious incidents, particularly one on 22nd June which had led to an emergency protocol meeting.[1] The hope, he said, was that if the court authorised the current restrictions and with a clear discharge plan, the public bodies party to the case might agree that the assessment was no longer necessary. Lieven J responded sharply to this, telling the parties that if they proceeded with a Mental Health Act assessment and sought to make an application, she would expect the Official Solicitor to consider judicial review. She told Ms Butler-Cole KC that she was sitting in the Administrative Court that week, and any such application could be directed back to her.

Mr Hadden then moved to “restrictive practices”, a phrase that was quickly picked up by Lieven J, “restrictive practices, do you mean restraint?”. He did, but he was also referring to PRN medication, including lorazepam, which had been given to P on a regular basis and which, he said, had caused anxiety among professionals because of the prolonged use of restrictions without lawful authority. Lieven J was visibly unimpressed. There was no medical report before the court, no explanation of contraindications and she was firm that she would not authorise medication under Article 5 as this “was a matter for clinicians”. When Mr Hadden tried to explain that the medication had already been prescribed, Lieven J stopped him again. “I don’t care, Mr Hadden…it’s not a matter for me. Do not use the High Court as a veil of respectability for clinical judgements.”

Lieven J then returned to the draft order, which she had only received as the hearing was called on. She felt the provision was too general. If the court was going to authorise restrictions on P’s liberty, the order needed to be clear about what those restrictions actually were, and in particular to make clear that any physical restraint must be the minimum necessary. Mr Hadden suggested an appendix setting out the proposed restrictions, drawn from the local authority’s evidence. That was agreed, until he added that it included PRN medication. “Well take that out,” Lieven J said. She was content for the order to record, by way of recital, that P had been receiving medication because clinicians considered it clinically indicated, but she repeated that she was not authorising it and emphasised that it was not appropriate for the High Court to authorise medication without a full medical report and explanation.

It was agreed that the order would authorise deprivation of liberty in hospital only on a carefully limited basis, with the detail needing to be properly set out in a further hearing before discharge. Mr Hadden said the court would need to return to the issue of P’s deprivation of liberty in the community prior to her discharge from hospital; specifically, whether CCTV should be used in her home.

The new care providers had indicated that body-worn cameras would be needed, but had not yet reached a view on CCTV in the community. Mr Hadden also raised that P had asked to meet the judge. Lieven J said she had considered suggesting it herself at the last hearing, but she could not use Makaton and was concerned that this might dysregulate P. There was also the practical problem of arranging a visit before the proposed discharge week and it was later agreed that a remote meeting between Lieven J and P and her siblings would be arranged.

A timetable was then agreed: care planning documents by 20th July, a professionals’ meeting that same week, and a further remote hearing on 28th July at 9.30am, with the expectation that P might then be discharged on 30th or 31st July. Before moving on, Lieven J returned briefly to CCTV, making clear that her opinion was that fixed CCTV was preferable to body-worn cameras. She felt that people could forget about CCTV, allowing ordinary relationships whilst body-worn footage, was “very intrusive” and would almost physically stand in the way of a normal relationship.

Aswini Weereatne KC for Suffolk County Council, then raised the question of physical restraint, inviting the court to authorise the current care provider’s intervention plan. Lieven J said that would be “wholly inappropriate” as she had not gone through it line by line, and was not in a position to decide whether it fell within Article 5 or was “sensible or flawed”. The plan itself could be referred to in a recital, but the order itself would need to contain “standard wording” that physical restraint could be used only as a last resort and only where absolutely necessary and proportionate.

Anna Bicarregui, for P’s siblings, said there had been real progress in discussions before the hearing and they were grateful for her indication that CCTV was preferable to body-worn cameras. If filming was to happen at all, CCTV had been P’s siblings’ choice as it was “infinitely preferable” to P being confronted by carers wearing cameras.

Lieven J pressed the importance of P’s siblings being fully involved in how the move was communicated to her. Lieven J said that though she had never met P and only had “the most superficial” knowledge of her, from the papers she suspected that P became dysregulated when she was frightened or felt out of control. Her siblings knew her best and were “much more likely to understand her triggers than any of the professionals”. Ms Bicarregui agreed, referring to an occasion when one of P’s siblings had calmed her by tracing figures of eight on her hand. Lieven J then addressed everyone on the call saying that the next few weeks would be difficult for P, and therefore difficult for the professionals too, but there was “no point blaming people” and that for the next four weeks, everyone’s focus should be on getting P out of hospital.

Ms Butler-Cole KC, asked for the statutory bodies to confirm by the following day whether they still wanted it to go ahead with the Mental Health Act Assessment. If they did, yet more work would be needed to prepare P, including another social story explaining the assessment itself. Lieven J queried whether the hospital intended to “shift her to another hospital and psychiatric unit”. Ms Butler-Cole said that would be the outcome if an application succeeded, and that P would not do any better in a psychiatric hospital saying that if things unfolded this way she “may never leave”.

When the Trust representative addressed the court on behalf of the hospital, she explained that the request for a Mental Health Act Assessment had followed a meeting of the public bodies involved in P’s care after increasing incidents, described as “violence and aggression”. The hospital had made the request because it was the body holding P, although she understood it to have been a joint clinical decision.

Lieven J was careful not to dismiss the hospital’s concerns. She understood that there had been a very difficult incident and that the hospital had a duty to protect its staff. But said she felt strongly that a psychiatric admission at this stage would be “very counter therapeutic” for P, and feared that if P ended up in a psychiatric hospital now, “it may be a very long time till we can get her out again”. The possibility remained that the request could be withdrawn, or that the AMHP might decide not to take it forward after seeing the court’s order.

The final substantive issue was the eating and drinking plan, and questions around a professional report which proposed P be discharged with an NG tube in place. Lieven J warned the parties “don’t let the best be the enemy of the good”, saying that some of the things the report sought might be achievable, some might not, but none of that should be allowed to block “the big picture”, which was getting P home. She said there were risks with discharge but also in P staying in hospital, where there was a real possibility that she would end up detained under the Mental Health Act. She understood that public bodies were nervous about carrying risk, and that there was an understandable desire to place it “firmly in the lap of the High Court”, but everyone appeared to agree that it was in P’s best interests to go home and she did not want was a return to “a superficial risk averse approach” in the final weeks.

Mr Hadden then updated the court on efforts to identify an individual therapist to work one-to-one with P. The difficulty, he said, was that the person would need to be Makaton-trained, and such support did not currently exist within the service. It was unlikely to be in place before discharge, but the hope was that it could begin once P was home. In the meantime, P’s siblings would be involved, and the new care provider would be given psychological strategies they could use at carer level.

The next hearing was then fixed for 28 July at 9.30am. After thanking everyone for the work done to reach such a high level of agreement, Lieven J closed the hearing.

Reflections

Observing this case, I was very aware of the larger picture that P’s case sits within. The policy ambition, for more than a decade, has been to improve community support and reduce reliance on mental health inpatient care for people with a learning disability and autistic people. NHS England’s figures for May 2026 show how far that ambition remains from being realised. The latest data recorded 2,130 people with a learning disability and autistic people in inpatient services^. Of these, 1,030 had been there for more than two years, and 320 for more than ten. At least 1,920 were detained under the Mental Health Act 1983^.

P’s case shows how easily a person with learning disabilities can be pulled towards Mental Health Act detention. All parties seemed to accept that community care would be best for P, and that the longer she remained in hospital, the more distressed she was likely to become. That is now what appears to have happened. Her distress has increased, the restrictions around her have increased with it, and the fact of that distress has helped trigger a process that could lead to long-term inpatient detention under the Mental Health Act.

This is why I admired Lieven J’s handling of the hearing. She did not minimise the risks of P going home, the pressure on the professionals caring for her or the hospital’s duty to protect its staff. But she also recognised that delay and escalating restrictions carried their own risks, and might in the end be far more damaging to P than the risks everyone was trying to avoid. By the end of the hearing, it felt as though there was still a great deal to do, but also some momentum towards getting P home. I hope she will be able to do so.

Elissa Novak is an unpaid carer to her son and studies Law part-time with the Open University through its Carers’ Scholarship Programme.

[1] _{I was not clear where the request for an assessment had come from. I did request the case summary, chronology of relevant events and issues for determination prior to the hearing, in accordance with the Court of Appeal’s guidance in Gardner (Re Gardner (Deceased) [2026] EWCA Civ 640, but these documents were not been provided.}

Polly and AGNI: A family reflection on deprivation of liberty

Drawing by Polly Kitzinger (cartoon sketch) displaying herself as pxie-like figure with wings labelled "Me as a free spirit!"

By Jenny Kitzinger, 10th July 2026

Editorial Note: This is the fifth ‘commentary’ blog post we have published in the wake of the Supreme Court decision, handed down in June 2026, changing more than a decade of law and practice on ‘deprivation of liberty’ (see Endnote for more information).

Since 2014, with the Supreme Court decision in Cheshire West, my profoundly brain-injured sister, Polly Kitzinger, has been “deprived of her liberty” in a series of neuro-rehabilitation centres and care homes.

Since 2^nd June 2026, when the AGNI judgment^[1] was handed down by the Supreme Court, effectively reversing Cheshire West, she is probably no longer deprived of her liberty, as a matter of law (though this hasn’t yet been confirmed), and it’s likely that she will soon cease to have access to the associated Deprivation of Liberty Safeguards [DoLS].

Nothing actually changed in the nature of Polly’s care or confinement on 2^nd June 2026, except for the way the law now defines it.

The AGNI judgment says that a person is not deprived of her liberty if she is confined “because her condition was such as to require this by way of care” or the person is “wholly incapable of leaving both because of physical inability and because she was unable to form any desire or intention to leave” (§196 AGNI, approving an earlier judgment, SM before Lieven J). I think this is probably how Polly’s current care provision and condition will be interpreted.

The AGNI judgment has polarised opinion. On one hand, former Court of Protection judge Anselm Eldergill sees it as an “excellent decision” restoring liberty to disabled fellow citizens.^[2] On the other hand, some charities say that it strips people of “fundamental human rights protections” in “the biggest rollback of disability rights in a generation“.^[3]

This blog contributes a concrete and specific illustration of how the legal concept of ‘deprivation of liberty’ has been applied to one individual person, my sister Polly; and it explores the implications of the AGNI judgment for Polly and her family.

Part 1 introduces Polly as a unique individual with her own particular set of values, beliefs, wishes and feelings about liberty.

Part 2 outlines Polly’s deprivation of liberty following her brain injury and examines how, in practice, DoLS operated for her under Cheshire West. First, I highlight how DoLS was simply not relevant for her in ways it’s obviously relevant for some other people deprived of their liberty (Section 2.1). Second I focus on how DoLS delivered some crucial benefits (2.2). Third I show that DoLS sometimes simply failed to deliver on its potential (2.3). Finally I consider how DoLS might have actually caused her harm (2.4).

Part 3 explores what Polly’s future might hold following the AGNI judgment. I reflect, in particular, on the role of objection and ‘valid consent’.

Part 1: Introducing Polly

Polly was in a road traffic accident in 2009 which left her with multiple physical injuries along with intra-cerebral and subarachnoid haemorrhage and severe Diffuse Axonal Injury, a particularly devastating form of global brain damage involving stretching and shearing of nerve fibres in the brain.

Unlike some people subject to DoLS (e.g., those with learning disabilities, whose impairments have been present since birth), people with acquired brain injuries have usually already lived part of their lives able to make what domestic law deems “capacitous” decisions. In Polly’s case, her capacitous decisions and choices were very distinctive. She prioritised freedom and adventure. Her values and beliefs were also well known by friends and family, partly because she had strong feelings about her own autonomy and also because she worked as an advocate and then a ‘service user involvement officer’ in health care settings. (For more about Polly’s work and politics, see material we’ve posted on that section of the “We Love Polly” website).

In her final job, Polly produced a leaflet about how personal stories can be used to create changes in policy and practice. It is her commitment to that, and the conversations we had as sisters about issues such as ‘privacy’ and ‘the personal is political’, which helps guide my use of her personal story now that she’s unable to author this herself, or give permission for its use.^[4]

From the moment of the car crash, Polly lost the ability to make any decisions about her own medical treatment. After two years in a Prolonged Disorder of Consciousness, she eventually emerged into full consciousness with profound physical and cognitive impairments. Her presentation has fluctuated and shifted over the last seventeen years – but she’s been consistently subject to ‘best interests’ decision-making about almost every aspect of her life. For most of that time, Polly has also met the legal criteria for being ‘deprived of liberty’.

Polly was in a general hospital and then a specialist neuro-rehabilitation hospital for about a year and a half following her accident, and then moved on to a series of five different neurological rehab centres and care homes. Her care was clearly “imputable to the State” and she was “under continuous supervision and control” and “not free to leave” (the ‘acid test’ from Cheshire West in 2014).[5]

Every DoLS assessment carried out so far (these started in 2014) has found that she’s deprived of her liberty and also that she lacks capacity to consent to her residence and care arrangements because, for example, “Miss Kitzinger…presents with global cognitive impairment…disorientation to time, place and person, and lack of insight into her care needs” (DoLS form 3a, 2023). None of the extensive efforts at treatment or rehabilitation, fine-tuning pain medications, and exploration of technological aids or alternative care packages has altered this.

Polly’s physical and mental impairments severely restrict what she can do, her awareness of herself, and how she understands the world around her. She demonstrates some memory of her early life and can show flashes of compassion, intelligence and humour, but does not know that she lives in a care home (except, for brief moments, when someone informs her of this fact), and can’t remember what has happened even ten minutes ago.

She also seems to lack a sense of cause and effect: she cannot identify a source of pain or realise she needs help and then press a call bell. She is hemiplegic because her brain does not ‘recognise’ one side of her body and she’s dependent on others to hoist her out of bed, change incontinence pads, wash and dress her, spoon feed her food of the appropriate texture for her dysphagia, give medications, and transport her within, and outside of, the place where she resides.

The concept of liberty was very important to Polly, as it is to many people. It is a hugely evocative concept in politics, public discourse and in personal and family life. It’s represented by the Statue of Liberty overlooking New York harbour and personified in Delacroix’s famous painting as the bare-breasted woman leading the crowd over the barricades during the French Revolution. Liberty is symbolised by the broken chains in iconography associated with class struggle and the civil rights movement and it’s a core concept for the disability rights movement. However, as Alex Ruck Keene points out, in the law terms such as ‘deprivation of liberty’ have“autonomous meanings that do not correlate exactly with their ordinary usage”.

Polly has lived her life in the context of both the ‘ordinary usage’ of ‘liberty’ with its powerful social and political symbolism, and also the more peculiar legal definitions created by judicial interpretation of mental capacity legislation.

1953 (about eight years before Polly was born) Article 5 of the European Convention on Human Rights (ECHR), which guarantees the right to liberty and security, came into force.
1998 (Polly was in her 30s) the ECHR was incorporated into UK domestic law through the Human Rights Act 1998.
2005 (7^th April) The Mental Capacity Act received Royal Assent.
2007 (1^st October) The core provisions of the Mental Capacity Act [MCA] 2005 came into full force and Polly discussed this legislation with her family and prompted our mother to draft an Advance Decision to Refuse Treatment. Polly’s car crash was 18 months later (30^th March 2009) when she was 48.
2009 (1^st April) The Deprivation of Liberty Safeguards [DoLS] (an amendment to the MCA 2005) came into force. This was just two days after Polly’s accident, while she was still in intensive care.
2014 (March) Cheshire West – following legal proceedings based on an initial interpretation of the statutory meaning of ‘deprivation of liberty’ that played out during Polly’s early post-injury years, the definition was refined and expanded in the Supreme Court “Cheshire West” judgment in March 2014.

Polly was actively engaged with questions about ‘liberty’ (in the broadest lay sense of the term) long before she herself became subject to ‘Deprivation of Liberty’. Her views – vocally articulated before her car crash – were informed by evolving legal and political debates about liberty at the time and by our own family history and context. From childhood onwards, family conversations included: our father’s experiences in Nazi Germany and his child refugee journey to the UK; our mother’s campaigning for women’s rights in childbirth (including women in prison); and other family members’ experience of psychiatric hospitalisation and sectioning under the Mental Health Act 1983.

In adulthood, Polly’s opinions developed through her ongoing personal experiences, political activism and her professional work in diverse roles supporting people who wanted their voices to be heard, especially around health choices. This included, at one point, working for MIND as an independent advocate in a secure psychiatric unit – until she was banned from entering the premises because, in her account of this, she’d been ‘too challenging’ to the staff.

Polly was also strongly committed to her own personal autonomy. She’d refer to the fact that she’d been ‘born free’ – at home (not in hospital) in a village called ‘Freeland’; joking that this set the scene for her approach to life. She was adamant that she’d never want to live under state control, in an institution or a care home; for most her life she didn’t even want the compromises involved in sharing a home with a partner. Independence was core to her sense of self. She expressed this in the way she chose to live her life and in letters she sent us, as well as in poems and pictures.

Polly’s freedom to live her life in accordance with her own choices, value and beliefs was taken from her after her car crash. Polly’s sisters, parents and others close to her testified that Polly would not want to risk surviving with catastrophic brain injuries but doctors decided to continue to impose life-sustaining interventions upon her. Their position was supported by the ways in which the socio-medical system operated at that time. (We’ve written about this elsewhere see: “M,” Polly, and the Right to Die” and “Doctors wouldn’t let my sister die”.)

Seventeen years on, three of her sisters (Celia, Tess, and I) continue to try to fight for Polly (our parents have now both died and others close to Polly have drifted away or found visiting Polly too traumatic). We keep on trying our best to mitigate the ongoing harm to her and make her life the best it can be. We take different roles.

Celia focuses on legal developments, researches key areas about Polly’s care and liaises with lawyers. She was instrumental in lobbying for Polly’s first DoLS in 2014 after Cheshire West.
Tess focuses on day-to-day support for Polly. She is most adept at understanding Polly now and helping her to communicate as much as possible. She became Polly’s Relevant Person’s Representative (RPR) once a DoLS was in place.
I am Polly’s Welfare Deputy and have responsibility for the best interests decisions authorised by my court order. I make those decisions after consulting with those involved in Polly’s care or “interested in her welfare”, and taking into account Polly’s “past and present wishes and feelings” etc. as specified by s.4 MCA 2005). A Welfare Deputy must be consulted about deprivation of liberty and can veto an authorisation but cannot give valid consent to the person’s confinement. (The same applies to anyone the person had appointed in advance as their Attorney for Health and Welfare).

Part 2: **What Cheshire West and DoLS meant for Polly and her family**

When the Cheshire West judgment was published in 2014 it resonated powerfully with us as Polly’s family. Its principles and its symbolism seemed hugely important. It recognised the necessity of safeguards and the responsibilities of confinement “imputable to the State”. We certainly endorsed (and still do) Lady Hale’s oft-quoted statements that “A gilded cage is still a cage”. Our mother, Sheila Kitzinger, particularly liked that statement as it connected to some of her work on power dynamics in hospital maternity services (which she originally highlighted in the 1960s in her first book ‘The Experience of Childbirth’).

The ‘gilded cage’ has continued to be a powerful metaphor for us as Polly’s sisters, in ways perhaps not intended. So far, between two and three million pounds has been spent on Polly’s care by the State (i.e. taxpayers). This is, literally, around twice her weight in solid gold (at the market price at the time of writing). Even her ongoing (now reduced) core care package is £1950 per week, ie over £100,000 a year; so this figure could increase to four million pounds given estimates of her current life expectancy. This figure would have horrified Polly who had strong views on patient-centred and just distribution of health care resources.

Expenditure does not, of course, guarantee the quality of provision, but among all the dilapidated buildings, stressed staff, under-resourced and at times chaotic health and social care system it’s also clear that Polly has sometimes had access to state-of-the art medical equipment, excellent rehabilitation facilities and some superb specialist support and day-to-day care from dedicated professionals.

The places in which she is confined have also (usually) been made to look as pleasant as possible and staff often work extremely hard to create a positive ambiance. Her first placement after leaving the general hospital was on the ward of a slightly decaying Victorian country house, adapted by the Red Cross for World War 1 ex-service men. It remained in use as a rehabilitation centre until 2020 and had a hydro-therapy pool for patients, colourful pictures on the walls, and a fish tank in the reception area.

Later she moved into modern units – designed to maximise light, air and accessibility. She currently lives in a purpose-built care home in the grounds of a former stately home. Her room has a little veranda with potted plants and the unit is as ‘normal’ and ‘home-like’ as possible. We’re pleased that Polly has a view of mature trees from her window. It’s a placement we resisted because it’s a dementia centre into which she was essentially forced when a placement needed to be found urgently, and the Health Board responsible for her NHS Continuing Healthcare package declined to fund the specialist neuro-care centre we’d have preferred – but she seems quite ‘settled’ there now. There is a simulated bar in the residents’ lounge, folded napkins on the dinner table, and regular activities such as in-house films, quizzes and live group sing-alongs.

None of this alters the fact that Polly is trapped in a life she would have refused if she’d been at liberty to do so – no amount of money can change or disguise that. ‘A gilded cage is still a cage’.

But what can (and can’t) DoLS do to help make her placements as least restrictive as possible?

The AGNI judgment prompted me to systematically review what DoLS has done for Polly in the twelve years between spring 2014 and summer 2026. I’ve organised my thoughts into four categories relating to times when DoLS has been (1) irrelevant (2) beneficial, (3) unrealised and (4) harmful.

2.1 When DoLS is irrelevant

The Deprivation of Liberty Safeguards framework is designed for a very specific purpose in relation to ‘physical liberty’ – and this is narrowly defined. The safeguards are not designed to address medical treatment as such, so trying to get a DoLS was of no use in stopping doctors from providing life-sustaining treatments contrary to what we knew would be Polly’s wishes (between 2009 and 2011). Nor did it help in challenging the associated restrictions that giving those treatments sometimes required.

By the time she did get her first DoLS (in 2014, around 5 and a half years after the car crash), Polly was no longer dependent on life-sustaining treatments such as clinically assisted nutrition and hydration so there was no obvious medical treatment we could ask doctors to withdraw. And by that time (belatedly), health care professionals concurred with family about what ceilings of treatment were in her best interests.^[6]

The major residence issues that have been problematic for Polly have also often not seemed to be something DoLS can assist with. Arguments about deprivation of liberty were powerless in the context of key determinants of her placements and care such as what placements were available, what the CHC would pay for, and problems with the business models or stability of the care sector.^[7]

Other situations in which DoLS is designed to help have simply not been relevant to Polly’s particular situation. There is no argument, for example, that she might have capacity to make her own decisions about residence. There’s no option to return to her own home. There are no complex discussions to be had about issues such as using the internet or going out unaccompanied (she simply can’t).

We’ve not needed scrutiny of ‘extreme’ restrictions – partly because the severity of Polly’s physical impairments means that staff can simply usually walk away from ‘challenging behaviour’ without the need for restraint. Her ability to physically self-harm is minimal and episodes of refusing food and fluid have tended to cease within 72 hours. Although we know these sorts of issues come up repeatedly in DoLS cases (especially s.21A cases) in the Court of Protection, they simply aren’t relevant for Polly. Very few cases (an estimated 1% of people with DoLS)^[8] result in proceedings in the Court of Protection (some of which can bring about such vital changes for the protected party). Some lawyers are simply not very familiar with the other 99%!

2.2 When DoLS has benefits

Where DoLS has been useful is in relation to day-to-day care management issues. Ironically, this was never intended to be the purpose of DoLS (which is about the proper implementation of Article 5). However, Best Interest Assessors (BIAs) are very adept at spotting ways of improving care planning. and this has been, in practice, an important benefit to the thousands of people who have DoLS reviews, but who never make a Section 21a challenge or other court application.

The BIA is independent from both the family and the managing authority. They can bring a different focus and fresh eyes compared to those of us entangled in the morass of challenges involved in supporting a profoundly disabled person – either as a relative or as a healthcare professional. The BIA also has the authority to see all relevant documents and is recognised as an expert whose recommendations should be taken seriously – and might even recommend ‘conditions’ to the Supervisory Body which, if imposed, must be followed for the DoL to be lawful.

We’ve welcomed the fact that Polly’s BIAs can review all the documents, give close attention to Polly and her situation, and ask questions that we may not have considered. They’ve also been able to reassure staff about the use of devices such as a lap belt – underlining, for example, that staff should follow the guidance from the neuro-physio and specialist wheelchair assessor about doing up Polly’s lap belt and that this has been assessed as necessary, proportionate, and in Polly’s best interests. (The lap belt merely stops Polly sliding onto the floor; it does not prevent her moving in other ways, because she can’t.)

This never should have been an issue that DoLS needed to address of course. It should have been resolved by proper engagement with best interests, but in a unit unused to people with Polly’s type of impairment and lack of body tone, staff frequently forgot to do up the belt, and two even declined to do so when asked by me or Tess, citing ‘deprivation of liberty’ as a reason.

BIAs have also often managed to engage with Polly sensitively, listen to family concerns, and tried to maximise the ‘normality’ of Polly’s placement situation or promote her ‘access to the community’. For example, several BIA reports have stated that Polly should be included in more activities or taken out more often – and these have sometimes been set as ‘conditions’ of the Standard Authorisation.

It should not be this way of course; but our experience as family members (even when one of us is Welfare Deputy and another is RPR) is that we are often not listened to in the same way as a BIA. We can be dismissed as ‘hyper-vigilant’ or ‘serial complainers’ and we also face the complex task of trying to navigate on-going relations with care staff and organisations.

Navigating relations with staff/organisations is a particularly pertinent issue for us as we live under the shadow of Polly having been evicted from one placement after we made a series of complaints (including one about an incident of disproportionate and unnecessary use of restraint).[9] The relationships with staff became very fraught. Tess’s freedom to enter the care home was restricted – an echo of Polly’s own experience when she was banned from the premises of a psychiatric unit where she worked. Polly herself was then evicted.

Tess feels very strongly about the values of DoLS and its ability to help Polly. When I asked her about her views for this blog, she highlighted the value of being Polly’s RPR (not ‘just a sister’): “It feels like a protection for me. – that I have some validity as a visitor and someone with opinions about how my sister should be cared for. Whether that can be leveraged a tiny, tiny bit. It’s not just about whether she’s behind a locked door. It should allow me to enable her to have choices, even behind that locked door…I think DoLS is really important, it’s just another tiny corner of hope families have for making some changes.” (A longer part of this filmed interview is available at: https://www.youtube.com/watch?v=AgmtMvo2Myo).

2.3 When the potential benefits of DoLS are unrealised: A system under stress

I am less positive about DoLS than Tess. Maybe that’s because I don’t have the threat of losing the status of RPR, or maybe I have less tenacity in holding on to hope. Most of all, though, it’s because the DoLS system has often not worked as it was supposed to. The gap between the principles underpinning DoLS and the practice on the ground – and the huge unrealised potential that reflects – is crucial to considering the future of DoLS.

Our experience during the last 12 years is that DoLS has often been missing (2.3.1), ineffective (2.3.2) and/or has led to perpetuation of misleading and inaccurate information about Polly (2.3.3).

2.3.1 Missing DoLS years – unlawful deprivation of liberty

During the twelve years between 1^st April 2014 (after Cheshire West) and 31st March 2026, there were, in total, almost seven years when (everyone accepted at the time) Polly should have had DoLS in place, and did not.

This surprises nobody. It’s accepted that there were simply too many cases to process after Cheshire West and that the system wasn’t equipped to deal with that volume. The result was that a large proportion of people deprived of their liberty by law, were also deprived of the safeguards that the law, in the shape of the Cheshire West judgment, had ruled should be in place to protect them. This was, as Alex Ruck Keene highlights, morale-sapping for professionals forced to prioritise who got DoLS and who didn’t; they were left effectively “having to identify how best to break the law”.

For us, as family, the message was that depriving Polly of her liberty unlawfully was not taken very seriously. It made a mockery of what had been determined by law to be Polly’s ‘rights’, reflected a gulf between law and practice, and created another fruitless task for me trying to chase up missing DoLS. The very mechanism that was supposed to “protect” her became yet another example of the broken system that now controls Polly’s life.

2.3.2 Ineffective DoLS

It’s our recurrent experience that DoLS simply doesn’t deliver on-the-ground change. For the five years when DoLS was actually in place, we were disappointed to realise that BIA recommendations and conditions often promised more than they delivered – as illustrated by the examples below

Example 1: In 2020 (maybe partly due to the start of the Covid crisis) nobody, not even the care home manager, received the relevant DoLS paperwork that should have been sent out and this was despite repeat chasing. A year later, when I was lobbying for the next DoLS, the care home manager wrote: “We never received the paperwork from the one submitted last year and we requested it several times, even during the review that was done over the phone, this was stressed out to the review officer…. I will contact them immediately to submit the new application and explain that if there was any recommendations, we couldn’t have complied with them.” When I finally did receive the paperwork I found, in fact, that it had included not just recommendations, but actual conditions (for more activities and outings). These conditions had never been communicated or monitored. Ironically, and despite the failure of the DoLS, I think in practice progress had been made on these ‘conditions’, as there was good communication and collaboration with this manager and Polly’s key worker at that point. But in terms of effective operation of DoLS, it’s obvious, at the most basic level, that the value of setting “conditions” depends on communicating with the managing authority about what those “conditions” actually are.

Example 2: A couple of years later there’d been a long gap without a DoLS. The care home manager who’d sent me the email I’ve quoted above had left (as had Polly’s key worker) and there’d been a rapid turn-over of staff accompanied by an equally rapid deterioration in Polly’s care. We’d lobbied for DoLS for a long time, and kept being fobbed off with promises that it was in the system, or that an assessor had been assigned and that it would be done soon. A BIA was finally sent in – and she carried out a thorough consultation and review resulting in a detailed and extensive set of conditions. Those might have been helpful had they been imposed earlier – but, in fact, the care home closed down a few weeks later after severe staffing problems and being rated Inadequate by the CQC.

Example 3: Even when DoLS recommendations or conditions are in place and known about in a timely manner, it has taken huge efforts to deploy them in the service of even a tiny improvement in Polly’s life. It needs concerted efforts, week after week, to make progress that is often only temporary. For example, a “condition” stating that Polly should have the opportunity to be taken out of the care home at least once a week may be thwarted by, for example: first finding that her large wheelchair can’t be safely accommodated in the care home van along with other residents that are to be taken out that day; next, when they finally get her into the van, finding the necessary securing tension strap is broken; the third week there is no outing at all because the driver is off sick, and there is no cover. Other reasons outings didn’t happen have been that the van is needed for another resident’s hospital appointment, Polly herself has an unannounced visit from the dentist and we decide that should take priority, or Polly is too exhausted or agitated at the scheduled day and time. When it finally does happen, the “outing” may constitute nothing more than being put in a van and driven around a lake without even being taken out of the vehicle. But Polly has “had an outing” and the box for that week is ticked, on paper at least.^[10]

Example 4: There is considerable variability in the skills and practice of BIAs (or perhaps challenges they face with conditions of employment and pay). This can mean the whole DoLS process is at best a lost opportunity. The BIA who assessed Polly in 2025 did not contact us in advance of going to see her. This meant that neither Polly, nor he, could benefit from what we might have told him in advance, nor could we offer to provide Polly with communication support. He only rang Tess (Polly’s RPR) and me (Polly’s Welfare Deputy) the week after seeing her – and then informed us he urgently needed to submit the report by the end of that day. My initial conversation with him felt too brief (I was travelling at the time): he did not get back in touch when I asked him to, nor did he discuss his report with us in advance of submitting it, as some BIAs have done in the past. His report included significant errors of fact.

2.3.3 DoLS paperwork can perpetuate misleading information and errors of fact

I have become accustomed to sometimes ignoring and sometimes playing ‘whac-a-mole’ with the misinformation that frequently results from the copy-and-paste process of paperwork about Polly. Inevitably, BIAs are having to edit and process unfamiliar information at speed and the relevant forms often seem to involve the need for multiple repetition of similar information in different ways, without those completing the forms always having access to the relevant authoritative source. This means out-of-date information lingers and other information morphs and changes to the extent that it sometimes ceases to bear much relation to reality. The format of the forms themselves seem to breed data degeneration. For example: one report says that the BIA consulted Polly’s sisters and her children (she doesn’t have any children). Another DoLS document says that Polly kicks out at staff with both legs (she can’t – she’s paralysed down one side). A third states that Polly is being taken on visits to her family home – but this was claimed long after our father had died and the family home had been sold

Some of the reports include what might pass as detailed legal analysis if we didn’t suspect it was simply cut and pasted from another source. In assessing Polly’s understanding of the salient points about her care and the impact of her brain injury on her decision-making, one assessor cites Derbyshire CC v AC, EC & LC [2014] EWCOP 38 and PC and NC v City of York 2013 and refers to the “Causative Nexus” (Form 3a, 2023a). Another assessor claims to use ‘the Guzzardi framework’ to analyse the restriction on Polly (Form 3a, 2025). It’s superficially impressive – but it feels as if Polly herself has become lost in the process. In some reports the tell-tale signs of copy and paste are sometimes betrayed by pronoun changes (e.g. Polly is referred to as ‘he’ and ‘him’ mid-sentence) or odd shifts from “Miss” or ‘Ms’ to ‘Mrs’ (she was never married and would have vehemently objected on feminist grounds to both “Miss” and “Mrs”).

Forms also include slightly bizarre statements such as “Miss Kitzinger has no awareness of what is a healthy balanced diet” or “If she left by herself she would become lost” (Form 3, 2017). These are bizarre (to us) because planning a balanced diet or finding her way around are so remote from Polly’s actual capacities as to sound fanciful. Apart from propelling herself from bed to crash mat when thrashing during periods of agitation, Polly can’t independently mobilise at all.

Errors and irrelevances sometimes result from what we have come to think of as ‘performative personalisation’. By this we mean that professionals attempt to display familiarity with the individual, and to demonstrate that they’re considering Polly’s best interests ‘as a person’. Of course, acknowledging who the person is/was can be done skilfully and well – and we appreciated the BIAs who took the time to listen and acknowledge something meaningful about Polly. But some assessors’ representations of who Polly is/was can be very shallow and unconvincing.

The 2025 DoLS paperwork is a prime example. The BIA reproduces incorrect information from earlier forms and adds some additional factoids of his own.

Form 3 asserts that Polly was born in Oxford: she was not – and the fact that she was born in Freeland was, as I’ve highlighted earlier, very important to her. It says that she also went to school in Oxford. She did not. It reports that: “At school, she enjoyed drawing and writing poems. She did not like Maths” (Form 3, 2025). Unlike the first two ‘pseudo-facts”, this last point is true, but seems a strange thing to highlight. We haven’t been able to trace where the BIA obtained the ‘dislike of Maths’ factoid: it’s certainly not information we would ever have raised as relevant to DoLS, but was perhaps something one of us mentioned in passing to a carer or activity co-ordinator. It seems very odd to put this on a DoLS form, over 40 years after she left school.
More seriously, under the heading ‘Past View” the BIA went on to state (manifestly falsely) that: “There is no information on record of an advance decision or past views/wishes expressed by Ms Kitzinger in relation to care/accommodation”. I don’t suppose anyone reading this blog post will be surprised to learn that I’ve placed a one-page summary about Polly’s “past views/wishes” with her hospital admission pack, alongside my detailed and evidenced Welfare Deputy report. There are also, of course, the public statements we’ve made about Polly’s past values, feelings, wishes and beliefs, including an interview with BBC news.
The final paperwork from the Supervisory Body states categorically: “The Supervisory is satisfied that the Best Interests Assessor is assured that there is…no Deputy for Health and Welfare”. Who can have “assured” this BIA that there is no Deputy for Health and Welfare? Certainly not me, her Deputy for Health and Welfare. How can the Supervisory Body be “satisfied” that the BIA is so “assured”? The fact that this form was signed off and filed to “protect” Polly and “safeguard” her is ironic. It was probably “just” cut and paste – but it’s an egregious error.

In the 2025 DoLS documentation, Polly’s identity as an adult and the extensive evidence of her strong values and beliefs (her sisters’ ability to represent these and my particular role in promoting her best interests) is simply erased. The documentation leaves a gap between Polly as a schoolgirl who didn’t like Maths and Polly as the care home resident she is today – the Polly we knew for her entire capacitous adult life is rendered invisible.

2.4 DoLS Harms

All interventions (whether administrative or medical) can carry both benefits and harms – the point is to be aware of the potential for both, and to maximise the benefits and minimise the harms.

Mostly I’ve felt that DoLS has not harmed Polly directly, but reviewing relevant documentation for this blog has led me to revise this opinion a little.

The spectre of DoLS, and (erroneous) views about it by front line health care staff, may sometimes have interfered with thoughtful best interests decisions and care for Polly. For example, in October 2014 (just after we’d successfully initiated the first DoLS process) we discovered that Polly had been left in bed for over a week. This was contrary to her care plan and therapists’ advice, especially in relation to managing her chronic pain at that point. There was no evidence that any significant time had been spent reassuring Polly ahead of the necessary hoisting or even giving her a reason for getting out of bed (such as an opportunity to be taken out of the care home). The manager’s response to our complaint was that this decision accorded with Polly’s own wishes not to transfer to her wheelchair. She wrote: “There is no Deprivation of Liberty safeguard in place for Polly and as such we need to remain responsive to her wishes as she indicates them“. The letter concluded with the result of the investigation of our complaint: “Outcome – Unsubstantiated” (Letter from manager, 22^nd October 2014). This illustrates the anxiety staff may have about attempting to persist with some interventions when a person says no. It also reveals a confusion between DoLS and Best interests.[11]

The second potential harm to Polly relates to the assessments themselves. It’s well-documented that some care home residents experience the BIA process as intrusive or distressing (see, for example, “A court hearing and 23 visits from 16 officials”). I do not think Polly has usually experienced them this way – not least because Tess has usually been there to mitigate any distress that might result from the questioning and to ensure that Polly is understood as much as possible (Polly’s speech is very limited and difficult to understand). However, looking closely at the report from the BIA assessor in 2025, I think this assessment may have caused distress. This was the year we received no prior notice of the assessor’s visit to Polly: he met her with a ‘senior carer’ but no family member. He describes arriving to find Polly relaxed, calm, and alert, but his account suggests to me that she quickly became disengaged. Here’s his record of the interaction:

I do not think this was handled well. We know from our own interactions with Polly that when told she’s in a care home, she can respond with shock and repeatedly ask ‘Why? Why? Why?”. She can also become distressed when quizzed about a reality she does not recognise (e.g. that she needs support and is living in a locked environment). I suspect Polly forgot this encounter within minutes – and I hope any distress it caused faded quickly too. But I’m going to request that in future no formal assessment on Polly is done without informing me or her RPR in advance and ensuring that Polly has the option of having one of us present for the assessment.

3. Looking to the future: objection and consent

I assume there will be at least one last DoLS assessment of Polly to check whether or not she remains eligible for DoLS. The multi-factorial approach will necessitate some consideration of objection, and I suppose it’s possible it might also (depending on the flow chart followed) consider the concept of ‘valid consent’. In this last section, then, I want to reflect on how Polly’s behaviours and views in these domains were interpreted prior to the AGNI judgment, and how this might be different post-AGNI.

On objection: For almost ten years after Polly regained consciousness she could display very “challenging behaviour” and what the nursing assessments record as “violence against herself and others”. This necessitated funding for one-to-one support at times and specific management strategies. Sometimes the ‘triggers’ could be clearly linked to specific actions (such as giving personal care), her chronic pain, or sources of obvious frustration (such as no one being able to understand what she was trying to say).

But sometimes no specific ‘trigger’ could be identified (in spite of all the ABC charts and monitoring) and at times there were intense periods of shouting and kicking and refusing care and treatment, as well as food and water. The most intense episodes could be accompanied by increased lucidity and ability to communicate. They seemed linked to internal distress; she could occasionally shout or write legible words during these episodes – sometimes recording emotions and desires including, on one occasion, quite remarkably, writing: ‘I‘m thinking how to die’, ‘kill me’, “I need to kill myself”. A psychiatric assessment was carried out in 2012 using an ‘Ill-being’ scale’: it gave Polly the highest possible ratings on all dimensions including: “shows signs of feeling depressed or despairing”, “shows intensely angry or aggressive behaviour”, and “shows signs of grieving over losses”.

Polly’s “challenging behaviour” or expressions of distress have never been interpreted as Polly objecting to her placement. Nor has documentation of her prior wishes (never wanting to live in an institution or care home) ever been used to inform such a conclusion. She no longer displays such behaviour – but were these episodes to recur, I think it looks like ‘objection’ might get more attention in the post-AGNI legal, policy and practice landscape (e.g., see AGNI para 145).

On ‘consent’: Ironically it is ‘valid consent’ which now, at least in theory, might be more relevant to Polly (if the objective measure for ‘deprivation of liberty’ were to be met, which I don’t think it will be). Polly’s behaviour has changed dramatically in recent years. She is now super-compliant and seems eager to please. She may still briefly become agitated by things such as if another resident who is mobile walks into her room and touches her – but otherwise Polly seems not to complain about anything; in fact she seems no longer to attempt to communicate her experience at all. Her care notes record her as “settled” and “cheerful”.

A recent psychiatrist’s report prepared for the last DoLS writes that Polly is “very compliant” and is “happy with her care” (Form 4, 2025). She often smiles a welcome to people who come into her room and starts shouting “I love you” repeatedly over and over again (to care staff, GP, dentist, and to the best interests and mental capacity assessors). When, a few weeks ago, Tess tried to explain to Polly that she was living in a care home and ask her about her experience of it Polly replied “I love you”, then “you’re lovely’. When Tess again prompted Polly to talk about the care home she responded “it’s lovely”.

I would like to think some of the changes in Polly’s presentation might be linked to changes in her actual experience. I don’t think she’s got the memory or processing power to ‘adjust’, ‘come to terms’ or discover new meaning in a radically changed life (a common journey eloquently reported by people facing sudden-onset physical disabilities such as spinal cord injury). But perhaps her brain has changed in ways that mean she’s less tormented by flashes of memory or insight that seemed to me to be associated with the earlier most intense and sustained outbursts of rage and distress. I wonder if she’s now developing post-brain-injury dementia and losing a deeper layer of memory in some way. Or perhaps her care and the nature of her placement has changed in ways which keep her calmer?

But I also see the force of the explanation advanced by my sister Tess, who is closest to Polly – and her perspective is much more disturbing. She believes the changes in Polly’s behaviour were, in part, linked to the Covid restrictions, when we were often unable to visit her. The effects of the pandemic lockdowns were exacerbated for Polly as staffing and management of her care home deteriorated. Its CQC rating dropped from “Outstanding” to “Inadequate” – with failures in safety, caring, effectiveness, responsiveness and leadership. The CQC report records that “Staff members did not always treat people with warmth, dignity and respect” and “People were not always supported to have maximum choice and control of their lives and staff did not always support them in the least restrictive way possible”. Tess says that Polly simply “gave up on fighting her corner”. She has been finally “broken-in”, her emotions “flattened”, she no longer expresses some of her needs: “It’s almost like there was no other way for her to exist but to become compliant and lock the frustration away and hide the key”.

This remains true even in the new placement she moved to – with kind staff, who are clearly fond of her, and committed to respecting her choices where ever possible and supporting her the best they can. This ‘new Polly’ will now assent to almost anything. After noticing her front teeth looked loose and askew, for example, I discovered that carers had taken a dental bridge that had broken off – and been repeatedly reinserting it into her mouth (apparently under the mistaken belief it was a form of denture). She’d passively accepted, without protest, the reinsertion of the metal spike into her jaw, and the consequent lopsided bulge in her mouth as it worked loose again. On another occasion Tess tasted a spoonful of the food she’d been given to feed Polly with, only to find it had a yoghurt topping containing bitter medications – which should have been given separately and overtly by a nurse. Polly had been accepting the food and indicating that it tasted good – though it can’t possibly have done! Tess says: “She is very vulnerable in every way. She’s vulnerable to people deceiving themselves into thinking everything’s okay when it’s not. I wish she could protest more… This is a big problem because she doesn’t complain. They think they’re doing really well and they don’t understand why I have issues with some of the care“.

Although I have been somewhat reassured by the sophisticated understanding shown by BIAs when discussing how people might present, and a clear reluctance to take ‘consent’ at face value, I do share the widely expressed concerns that ‘valid consent’ is open to misinterpretation and may result in making vulnerable people more vulnerable.

4. Conclusion

Polly’s life for the last 17 years has been radically different from how she lived her life when she was free to make her own choices. She has irrevocably lost her ‘liberty’ – in the sense in which she interpreted and valued it. She would have defined herself in this situation as someone with ‘no liberty left to lose’ as she understood the concept.

We are left trying to ensure ‘person-centered’ care for her in the situation she is now in, navigating ‘best interests’ decision-making and attempting to minimise restrictions, maximise opportunities, and support what few choices she can still make.

The framework established by the Deprivation of Liberty Safeguards has enormous symbolic significance as well as practical value. It’s provided one of the few mechanisms for regular, independent scrutiny. At the same time, the system has sometimes proved frustrating, has not always been fit for purpose, and has itself sometimes caused harm.

Our experience with Polly highlights the importance of sustained advocacy and skilled, independent scrutiny for people in situations like hers. This is particularly true for those without family support. But Polly’s case also demonstrates that, even where family members are knowledgeable, committed and persistent, their involvement cannot be a substitute for meaningful, independent safeguards. Advocacy and best interests review should be available to care home residents who need them, irrespective of whether they fall within the scope of the DoLS framework. The risk, following AGNI, is that the judgment may be interpreted as a basis for reducing services. If the judgment is to strengthen rather than weaken the protection of people’s rights, experienced Best Interests Assessors and independent advocates must continue to be available, working in genuinely person-centred ways and focusing on the issues that matter to the individual rather than the priorities of the institution. Whether AGNI ultimately improves or diminishes protection will depend, in large part, on whether those alternative safeguards are properly resourced and made meaningful in practice.

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 and is on BlueSky as @JennyKitzinger

[1] _{“A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998” [The AGNI judgment] https://www.supremecourt.uk/cases/uksc-2025-0042}

[2] _{LinkedIn Post (June 2026) https://www.linkedin.com/posts/anselm-eldergill-}

[3] _{Press release from the National Autistic Society Mencap, Mind and the National Autistic Society https://www.mencap.org.uk/press-release/biggest-rollback-disability-rights-generation-charities-respond-supreme-court-ruling; https://www.autism.org.uk/what-we-do/news/charities-response-to-supreme-court-ruling}

[4] _{For further discussion of Polly’s views on privacy and some of my consultation about this with those who knew her, see: section 2.2 of ‘Successful application to disapply Section 12(1) of the Administration of Justice Act: Making Polly’s statutory will application public’ See also ‘Applying for a statutory will: Observation and personal experience’}

[5] _{P v Cheshire West & Chester Council & another; (2) P & Q v Surrey County Council}

[6] _{Lindsey Briggs brought an application under s.21A MCA 2005 challenging the DoLS authorisation in place at the hospital where her husband was being treated (and being given life-sustaining treatment in a minimally conscious state). She did so on the express basis that a s.21A application would allow her to claim legal aid on a non-means-tested basis – thus supporting legal representation to be able to argue her case that continuation of CANH was not in her husband’s best interests. The Court of Appeal in Director of Legal Aid Casework and others v Briggs [2017] EWCA Civ 1169 found that the Mr Justice Charles (in the original COP judgment on this point) had been in error in finding Mrs Briggs’ application under MCA 2005, s.21A, appropriate in these circumstances. Lady Justice King commented that: ‘section 21A goes to a consideration of whether the detention or deprivation of liberty is itself in P’s best interests and, while the surrounding circumstances are part of the picture, the question is not whether the circumstances, including the medical treatment P requires, (which amount to a deprivation of liberty), are in the best interests of P, but whether it is in the best interests of P to be a detained person.’ https://www.anthonycollins.com/insights/ebriefings/withdrawal-of-life-sustaining-treatment-and-mental-capacity-director-of-legal-aid-casework-and-others-v-briggs/}

[7] _{I’m grateful to Lucy Series for drawing my attention to proposals by the Law Commission 2017 (paragraphs 9.27 – 9.28) to remove the ‘best interests’ criteria for authorising a deprivation of liberty. This was on the grounds that, in practice, authorisations often have to be made that are not in the person’s best interests but are the only available option. The notion of “best interests” adds nothing to the requirement that the DoL should be “necessary” and “proportionate”. (See also the judgment by Cobb J in North Yorkshire CC v MAG).}

[8] _{Lucy Series writes: “There are no statistics on rates of appeals under the DoLS, but a best estimate puts the rate of appeal at fewer than 1% of people subject to a DoLS authorisation during 2017, and under 0.5% of DoLS applications overall” (Dr Lucy Series, Cardiff University, Evidence to JCHR on MCA DoLS, March 2018 (https://committees.parliament.uk/writtenevidence/87756/html/#_ftnref6.)}

[9] _{Tess’s written complaint to the home manager recorded that she’d entered Polly’s room to see a carer holding down Polly’s right hand (the only one she can use) and the nurse spooning liquid medications into Polly’s mouth: “Polly was fighting it. When Polly began to choke, [the named nurse] said: ‘you see what happens when you make a fuss’ and spooned more medicine into Polly“. Tess’s formal complaint highlighted that Polly’s Speech and Language Therapist had advised that “Polly is not supposed to be given any liquid before it is thickened to a ‘whipped cream’ consistency” and “If a patient begins to choke I understand that a carer is supposed to wait at least 5 minutes or until their voice sounds clear and non watery before putting more in their mouth. [named nurse] failed to do this“. Tess also pointed out that the nurse’s comment to Polly (“see what happens when you make a fuss“) was “inappropriate especially given Polly’s level of distress and her communication and cognitive impairments“. We never witnessed such behaviour again but the fact the nurse (supported by the carer) did this as Tess entered the room, left us concerned about what might have happened leading up to this incident, and what staff might do and say to Polly when family were not present. On another occasion when I witnessed restraint that might have been disproportionate (involving staff in a different placement), I took out my phone and asked Polly if she’d like me to film what was happening – Polly nodded. As I started filming the two staff members immediately let go of Polly and stepped away, one saying in alarm, “It will look like restraint” – a comment that I thought was revealing in itself. It underlines the importance of outside scrutiny and ‘bearing witness’.}

[10] _{There’s a huge gulf between the expectations Polly’s care homes set for outings and our own aspirations – some of which we’ve managed to achieve as a family, albeit with a great deal of time, repeated effort and flexibility. In Autumn 2010, before I understood how narrowly ‘outings’ and ‘access to the community’ are often interpreted, I produced a list of suggested trips out for Polly’s new placement based on things we’d already tried. This list now seems rather laughable. It included: “Craft fairs (especially if Polly is able to handle the objects)”; “Music events (she has tolerated short sessions …although be aware she may interrupt with sudden shouting)”; “Art Galleries (Polly was a keen artist – and one trip to an art gallery seemed particularly to engross Polly, although subsequent such visits have generated less interest)” and “Festivals (her sisters took Polly to the gay and lesbian Mardi Gras – and Polly was fascinated by the drag queens)“. (‘Service User’s Perspective: transfer summary for Polly Kitzinger’, Jenny Kitzinger, Welfare Deputy Report No 3. October 12th, 2010).}

[11] _{I wonder if staffing shortages may also have come into play as 3 staff members were required to hoist Polly safely at this point and it took a long time to do it gently and appropriately. Working with family to support the transfer or having us there to suggest an outing with her sisters might also have been helpful, but there was little collaboration with us at this point. A formal eviction letter arrived for Polly the following month.}

Endnote by Daniel Clark

Back in 2014, In Cheshire West, the Supreme Court considered the meaning of a deprivation of liberty (DoL) through reference to Article 5 of the European Convention on Human Rights. Lady Hale, giving the majority but not unanimous judgment of the Court, presented an ‘acid test’ for deprivation of liberty: is a person under continuous supervision and control, and not free to leave?

On Tuesday 2 June 2026, the Supreme Court handed down judgment in what is increasingly being referred to as “AGNI’ (the case was brought by the Attorney General of Northern Ireland). The Supreme Court overturned Cheshire West, finding the acid test to be wrong in law, and directed a different approach.

First, the identification of the objective element of a deprivation of liberty must entail a multifactorial analysis, which includes consideration of the intensity and purpose of confinement. If these conditions are not satisfied, there is no deprivation of liberty.

Second, a person may lack capacity to make decisions about their care and residence but can nevertheless give valid consent through an expression of their (positive) wishes and feelings. If a person is giving such consent, they are not deprived of their liberty.

To access the judgment, see: Judgment (PDF) (hyperlinked)

To access the court’s approved press summary, see: Press Summary (PDF) (hyperlinked)

To access the commentary published by the Open Justice Court of Protection Project, see: Commentary on the UK Supreme Court case about deprivation of liberty (hyperlinked)

If you would like to contribute a commentary about this judgment, please contact openjustice@yahoo.com, and mark your email for the attention of Daniel Clark.

From Cheshire West to AGNI: Rebalancing Protection, Autonomy and Human Rights

By Mary Kadzirange, 7th July 2026

Editorial Note: This is the fourth ‘commentary’ blog post we have published in the wake of the Supreme Court decision, handed down in June 2026, changing more than a decade of law and practice on ‘deprivation of liberty’ (see Endnote for more information).

Prior to the Supreme Court’s judgment, I wrote about the enduring tensions arising from Cheshire West. My central argument was that, although Cheshire West was grounded in the important objective of protecting vulnerable individuals through Article 5 of the European Convention on Human Rights, it expanded the concept of deprivation of liberty to such an extent that it blurred the distinction between necessary care arrangements and state-imposed restrictions. In practice, this created significant challenges for families, practitioners and public bodies seeking to balance autonomy, protection and proportionality.

The approach of the majority in Cheshire West reflected a deliberate policy choice. Recognising the particular vulnerability of people who lack capacity, the court favoured a broad interpretation of Article 5, arguing that where there was doubt, the law should “err on the side of caution” so that individuals benefited from independent scrutiny of whether their care arrangements remained in their best interests.

Over time, however, this approach arguably created an expectation that Deprivation of Liberty Safeguards could address wider safeguarding and social care concerns that were never intended to be resolved through the DoLS framework alone.

The Supreme Court in AGNI has now endorsed a different approach, concluding that these wider safeguarding objectives should primarily be achieved through existing statutory frameworks rather than by extending the scope of Article 5.

The concerns expressed by some charities following the judgment illustrate how strongly Article 5 safeguards have come to be viewed as the principal mechanism for protecting vulnerable people. While those concerns are understandable, AGNI challenges practitioners to adopt a more holistic approach to safeguarding: one that relies on effective implementation of the Human Rights Act, Mental Capacity Act, the Care Act and wider safeguarding duties, rather than expecting deprivation of liberty safeguards alone to fulfil that role.

However, the judgment also raises important questions. While the Court criticised Cheshire West for allowing DoLS to compensate for wider policy shortcomings in safeguarding systems, I believe it could be argued that AGNI was also partially influenced by policy considerations, particularly the unsustainable volume of DoLS applications and the practical difficulties of administering the system. This impression is reinforced by the Court’s discussion of the consequences of Cheshire West, particularly in paragraphs 103–109 of the judgment.

In seeking to restore proportionality, there is a risk that the pendulum may have swung too far in the opposite direction. The judgment provides numerous examples of circumstances that will no longer amount to a deprivation of liberty, but comparatively few examples of the types of cases that are likely to satisfy the revised threshold.

This may leave practitioners questioning where the new boundaries now lie. Greater clarity will no doubt emerge through national guidance, case law and practical examples, enabling professionals to develop a more consistent understanding of what constitutes a deprivation of liberty under the new legal framework.

The task of balancing competing human rights will continue to present challenges. Practitioners will continue to grapple with the challenging task of doing their best to reconcile respect for personal autonomy and private life under Article 8 with the need to safeguard individuals and protect life and physical integrity under Articles 2 and 3.

One of the notable features of AGNI is its attempt to navigate this balance by giving due weight to a person’s wishes and feelings, thereby promoting respect for privacy, dignity and autonomy, while also recognising the need for protective intervention where individuals are subject to coercion, are objecting to arrangements, or otherwise meet the criteria requiring formal legal safeguards.

Implementation and Training

The key challenge now lies in implementation. The Mental Capacity Act continues to be applied inconsistently in practice, and practitioners will require ongoing training, guidance and support to ensure that it is used effectively to safeguard individuals while appropriately balancing competing human rights considerations.

In my role as an MCA Lead and Chair of the National Healthcare MCA Community of Practice, I have repeatedly seen and heard examples across both health and social care systems where practitioners mistakenly view Mental Capacity Act assessments and best interests decision-making as specialist functions that sit primarily with Best Interests Assessors. The CQC’s State of Care (2024/2025) report continues to highlight the poor application of the MCA in practice across both health and social care including poor understanding of Deprivations of Liberty processes.

Too often, relevant capacity assessments and best interests decisions are not undertaken by frontline practitioners because it is assumed that these matters will be addressed later by a BIA, only for practitioners to discover that this is not so when the BIA turns up to complete their assessments for DoLS.

One positive consequence of the AGNI judgment may be that it encourages professionals to refocus on their own responsibilities under the Mental Capacity Act. By reducing the number of cases that require formal deprivation of liberty authorisation, there is an opportunity for practitioners to develop greater confidence in undertaking capacity assessments, making best interests decisions and applying the Act in day-to-day practice.

However, this will only be realised if significant investment is made in training, supervision and legal literacy across the workforce. Successful implementation of AGNI will depend not simply on understanding the judgment, but on equipping practitioners with the knowledge and confidence to apply it in complex, real-life situations. Training should move beyond traditional classroom teaching and place greater emphasis on practical, case-based learning using realistic scenarios that reflect the complexity of day-to-day practice.

Practitioners will need support to understand new concepts such as “valid consent”, how to interpret a person’s wishes and feelings, and how to distinguish between expressions of contentment, acquiescence and genuine consent. Equally important will be developing confidence in recognising objection, understanding the significance of different forms of restraint, and balancing competing rights under the Human Rights Act within the framework of the Mental Capacity Act.

Training should also help practitioners develop the professional curiosity to look beyond a person’s outward presentation, recognising that compliance or apparent happiness does not necessarily equate to freely given consent. National guidance, practical case studies and opportunities for reflective learning will be essential to build legal literacy and promote consistent decision-making across health and social care.

Above all, successful implementation of AGNI requires practitioners to return to the fundamentals of the Mental Capacity Act. A sound understanding of its core principles, supported by practical application rather than theory alone, will be the foundation for ensuring that the judgment is implemented lawfully, confidently and in a way that genuinely safeguards the rights, wishes and wellbeing of those it is intended to protect.

The judgment also arrives at a time when many local authorities continue to face significant pressures, including large numbers of individuals awaiting allocation for Care Act assessments and support planning. Against this backdrop, it is essential that AGNI is not viewed as a solution to wider systemic challenges. Rather, it should be seen as one part of a broader safeguarding framework that relies upon effective implementation of the Mental Capacity Act, the Care Act, the Human Rights Act and, where relevant, Children’s Act 1989, particularly for 16- and 17-year-olds.

Alongside formal training, there should be a national commitment to strengthening Mental Capacity Act Communities of Practice and practitioner forums. These provide invaluable opportunities for professionals across health, social care and other sectors to share learning, useful tools/resources, discuss complex cases, identify emerging challenges and promote consistent application of the law.

They also offer an important mechanism for identifying recurring themes from frontline practice that can be escalated to policymakers and those developing national guidance, helping to ensure that future guidance is informed by the realities of practice and is meaningful not only for professionals but also for individuals, families and carers.

We now await further detailed national guidance and case law to provide greater clarity about the criteria of deprivation of liberty as defined in AGNI.

AGNI is here to stay, and we should embrace it pragmatically. Its emphasis on hearing and respecting wishes and feelings aligns closely with the principles of the MCA, the Care Act and children’s legislation.

Mary Kadzirange has a legal background and is a Registered Mental Health Nurse and a practising Best Interests Assessor. She is the Mental Capacity Act lead within West Yorkshire Integrated Care Board’s safeguarding team. She is Chair of the National Health MCA Community of Practice and of the West Yorkshire ICB Race Equality Network.

Endnote by Daniel Clark

To access the judgment, see: Judgment (PDF) (hyperlinked)

To access the court’s approved press summary, see: Press Summary (PDF) (hyperlinked)

To access the commentary published by the Open Justice Court of Protection Project, see: Commentary on the UK Supreme Court case about deprivation of liberty (hyperlinked)

If you would like to contribute a commentary about this judgment, please contact openjustice@yahoo.com, and mark your email for the attention of Daniel Clark.

Considering ‘deprivation of liberty’ in a family home setting after AGNI

By Celia Kitzinger, 5th July 2026

In the aftermath of AGNI, I’ve watched many hearings where judicial determination as to whether or not P’s residence and care arrangements amount to a ‘deprivation of liberty’ has been deferred to a later hearing, apparently in the hope that there might be greater clarity by then as to how that determination should be made. But many of us are looking to judicial decision-making to understand how the AGNI judgment is implemented by the courts.

This is only the second case I’ve blogged about where a court has made a post-AGNI ‘deprivation of liberty’ determination (there are three more in the pipeline).

My first post-AGNI DOL blog 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 (‘Judge authorises medical treatment and DOLS in hospital”).

In this, my second reported case, a judge determined that there is no deprivation of liberty for a young woman living under constant supervision and control in an annex to the family home. HHJ Burrows found, in accordance with the AGNI ‘clarification’ of an Article 5 compliant definition of ‘deprivation of liberty’, that she is not so deprived – and it was clear from his comments in court that he did so with considerable reluctance, referring to “deeply philosophically difficult” arguments.

The young woman at the centre of this case (COP 13189539) is in her 20s with complex needs and a severe learning disability. She has refractory epilepsy with multiple daily seizures and severe curvature of the spine that necessitates use of a wheelchair. She receives 24/7 care and is routinely monitored using CCTV cameras. Proceedings were initiated by the local authority in April 2024 (so more than two years ago) seeking (a) a declaration that P lacks capacity in relation to residence and care, (b) a determination as to whether the arrangements in place for her residence and care are in her best interests, and (c) authorisation of a community ‘deprivation of liberty’ order.

It’s taken a long time to reach a final hearing, in part because one of the previous judges allocated for the final hearing recused himself (DJ Manasse, in October 2025) and then his replacement (DJ Bland) sadly died before the hearing listed for March 2026. The case eventually came before HHJ Burrows on 30^th June 2026 for final determination.

A complex case

The word “complexity” was used multiple times during the hearing. I think I heard the judge say that the bundle runs to 1036 pages. It was listed for a full-day hearing.

Unfortunately, given this ‘complexity’, the court did not respond to my request for disclosure of position statements or (failing that) for the three Gardner documents (i.e. those documents which “must” be – but probably were not – provided to the court according to PD4B para.4.2(a)-(c) COPR 2017, namely (a) the case summary, (b) a chronology of relevant events; and (c) the issues for determination at the hearing). It’s possible that my request never made its way to the judge – which is what I’ve been told in other hearings, there being no system in place for relaying observer requests to the court. So, this report is written simply on the basis of what I heard during the hearing and relies only on my contemporaneous touch-typed notes. I’m grateful to the judge for requesting, and to the applicant counsel for providing, an oral summary of the case – but it’s hard to capture the details at speaking speed: a document is far preferable for accuracy of reporting.^[1] What follows is what I understood of the case, reported as accurately as I can under the circumstances.

Residence and care arrangements

First, P is in receipt of a personal injury settlement calculated on the basis of one-to-one support during the day and sleeping support at night, with a projected life expectancy of seventy-one. In fact, for the last five years her needs have increased and are greater than originally projected: she’s been receiving two-to-one daytime support and waking night care. The financial deputy appointed by the court is concerned that, with this model of care, her funds will be exhausted by the time she is in her early thirties. However, nobody actively disputes that the current level of support is in her best interests, despite its financial consequences.

Second, the family has installed CCTV cameras inside the annex in which P lives and there’s been ongoing dispute about the use of cameras and about the retention of data from them.

Neither the local authority nor the Official Solicitor (OS) considers that the camera in the bathroom is in P’s best interests. It’s apparently there “for P’s safety following incidents with staff” (the judge confirmed “she’s never alone in the bathroom?”/”No”). The parents reported in court that they have now disconnected it – so this is no longer a matter of dispute.
A camera above her bed is used to monitor her during the night – with the waking night carer in a separate room, observing P on an iPad. The judge asked, “Wouldn’t the alternative be that carers sit in the bedroom staring at her – so in terms of proportionality, this is less intrusive”, which was accepted by the OS – although there seemed to be some doubt that waking night care was actually necessary (I think only on the grounds that it had not originally been provided for in the personal injury settlement).
The camera in the lounge is also contentious. According to the OS, the family at one point said that it was for P’s safety and for safeguarding, to monitor incidents with staff, e.g. “bruising and the cause of that”. But “now they [the family] say it’s in relation to staff training and the sharing of videos with clinicians” (said the OS). In particular, the family claim there is a need to monitor seizures and determine what might be triggering them. The case manager now supports the use of all the (currently operative) cameras – having changed her mind from an initial reaction that they were not the least restrictive option, to a position (as she got to know P better) where she says that non-clinical staff are “struggling to recognise the seizures which are sometimes very difficult to spot”.

By the beginning of the afternoon, the judge said he “was of the view that all the cameras [currently in use] are reasonable and necessary within the terms of Article 8. It seems to me that [the camera in the lounge] provides a function that cannot be adopted by ordinary carers because they don’t know what they are looking for [in terms of seizures]”. He considered that they are “not an unjustifiable intrusion into her privacy” and also that the “retention of data is useful” – since clinicians can inspect the videos to better understand the signs of seizures and possibly diagnose what triggers them.

Third, there is no comprehensive overarching care plan. The night staff are managed by one company, daytime care by another, plus the parents provide about 85 hours a week between them (“a crippling level of care, more than a working week each”, said the judge) – and their care is provided without a care plan that exists in writing. It’s also not clear who is in charge of her medication. “That’s bad, isn’t it”, the judge remarked. Later he added “What concerns me is that we’re two years into this case and we’re still asking what the care plan is. That is remarkable. It’s my first hearing, but two judges before me were none the wiser”.

Fourth, the care hasn’t been working out well. There have been tensions that “came to a head after an incident when one of the night staff was videoed asleep”. Both of the night waking staff were (or are?) on final written warnings for sleeping when supporting P as waking night staff. The parents (who were legally represented in court) want to move to a new model of care with directly employed staff. This would have the benefit of better governance (with the case manager responsible for all the people providing care), would enable better contingency planning (e.g., for staff sickness), and would also be cheaper.

Do P’s residence and care arrangements amount to a deprivation of liberty post-AGNI?

It was the Official Solicitor who, relatively late in the morning, pursued the question of whether or not P is deprived of her liberty.

OS: What we’ve not addressed is AGNI. The Official Solicitor’s submission^[2] is that P is not now deprived of her liberty.

Judge: Is that on the basis that she’s implicitly consenting, using this new definition of consent, or is it on the basis of the unattractive proposition that she doesn’t have any liberty to be deprived of?

OS: The latter.

Judge: So, it’s that she’s so disabled that she doesn’t have any liberty to be deprived of, despite 24-hour supervision and control, including cameras, and she’s not free to leave, because she can’t unless she’s helped. Can I just ask you this. In a case of this sort where we have a profoundly disabled young woman who has to have this intensity of restrictions for her care, and where there are uncertainties about her future care plan (including because of financial issues), is this not a case where, whether it’s Article 5 or Article 8, there needs to be at least one review.

OS: That encapsulates our concerns. She would have had a Rule 1.2 representative. The issue the Official Solicitor is concerned about in this very particular situation is that P will not have any active involvement from the local authority, other than the Care Act review. Which is no criticism of them, but the local authority is very clear that their responsibilities are annual Care Act review and safeguarding issues.

After the lunch break, the court returned to the matter of deprivation of liberty. The judge referred to the “fact-sensitive multi-factorial test” that is now required and said he was “provisionally of the view that she does not consent – because she is incapable and cannot be said in any meaningful way to agree to her circumstances”. He continued: “The more difficult point is that she is in her home – a proper home, with her family. Now I must consider a comparator case, which Munby said was [‘obnoxious’/ ‘innocuous’]^[3] – but it can’t be [a deprivation of liberty?] because the Supreme Court [I take this to mean in AGNI] said that P must be compared to other people similar to her, and everyone with a similar level of disability to her will be cared for in a position like hers. And there’s an even worse argument – that because she’s incapable of liberty, she’s not deprived of it. I find that deeply philosophically difficult. It fails to look at liberty in its broadest sense. The State has obligations to ensure that people are enabled to have the best life they can”.

In the view of HHJ Burrows, the AGNI definition means that P in this case is NOT deprived of her liberty – a conclusion he didn’t seem happy to have arrived at. He quickly moved on to consider Article 8. “Privacy is hugely interfered with – it is necessary and proportionate, and nobody is suggesting there shouldn’t be 2:1 care or that cameras at night shouldn’t be used, but it does engage Article 8”. The judge referred to Baker J’s observations in Cheshire West at first instance – “even if it weren’t an Article 5 issue, he would be requiring review under Article 8 to ensure P’s best interests”.^[4]

Counsel for P’s parents agreed that their daughter was not deprived of her liberty – but put the reasons differently. According to them, “P is cared for, not confined. Everything about her circumstances is tailored specifically to what she needs in that moment. And it’s not experienced as confinement”. They also believe that P “… is able to indicate happiness with her circumstances… she is able to vocalise happiness … she is happy in the situation that she’s cared in, albeit that the care is very intensive”. This sounds to me as though they were articulating, in effect, the AGNI notion of ‘valid consent’ (although the OS had previously indicated that the basis of the claim was not valid consent but lack of liberty to be deprived of – see the exchange between the judge and the OS above).

The hearing concluded with what I think was a expectation (I haven’t seen the order) that residence and care arrangements, which don’t amount to ‘deprivation of liberty’, would continue pretty much as they are for the time being, while the care manager draws up an overarching care plan which will (hopefully) be irrelevant in a couple of months or so once the company providing the day care is replaced with directly paid staff. If the parties can agree the care plan, no further hearing will be needed – at least not until the anticipated ‘review’ (which I think the judge will have ordered).

I have not yet received the approved order and will amend this post if it turns out there is more to report or if I have got something wrong – which is quite possible given the non-disclosure of documents relating to this case.

Reflections

It was apparent that HHJ Burrows is unhappy with the AGNI judgment – which seems to have divided the judiciary and the bar as much as it has divided opinion on the ground. Nonetheless, as judges must, he has applied it to this case and determined that P is not deprived of her liberty given the new criteria. I was disappointed that this hearing didn’t seem to involve a particularly rigorous application of the ‘multi-factorial’ analysis required by AGNI – which is of course what I hope to see in order to understand better how case law from the Supreme Court is applied in practice. For example, the judge didn’t engage with the parents’ argument that P was giving ‘valid consent’ by virtue of displaying ‘happiness’ with her arrangements. He didn’t return to and defend or revise his earlier ‘provisional’ view that “that she does not consent – because she is incapable and cannot be said in any meaningful way to agree to her circumstances”. There was clearly a difference of opinion on ‘valid consent’ here – but perhaps, being pragmatic, it didn’t matter, since the judge had already decided she was not deprived of her liberty on other grounds.

Finally, I see from the COP User Group minutes (1^st July 2026) that HHJ Hilder has suggested the following ‘template’ (subject to amendment as considered appropriate for any individual case) in relation to AGNI directions. This goes to the heart of the issue that members of the public are legitimately concerned about in relation to how judges determine whether or not a person is deprived of their liberty – but as it’s reported via a witness statement, it won’t be at all straightforward for court observers to get disclosure.

I am left with the strong view that the legitimate public concern about how deprivation of liberty decisions are being made in the post-AGNI Court of Protection requires more transparency from the court.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky (@kitzingercelia.bsky.social)

[1] _{For reasons I have yet to discover (but suspect was the result of administrative error), this case was never publicly listed on CourtServe (or anywhere else on line). The judge said at the beginning of the hearing that it had been publicised via a paper copy of the listing displayed on a board in the court building in Preston. Since I was not in Preston and the listing was not more widely publicised, I did not know that the hearing was in person and I’m grateful to the judge for admitting me via video-link under these circumstances.}

[2] _{The Official Solicitor’s position will have been set out in full in her Position Statement, but this was not disclosed to me. Consequently, I do not know the legal arguments on the basis of which the OS advanced her position in the kind of detail and with the appropriate case law that would have been useful to me, and to readers, in understanding how the judge arrived at his decision. It’s unfortunate that the Court of Appeal decision in Gardner has impacted so negatively on understanding how judges make decisions in the Court of Protection about key matters of public concern.}

[3] _{I initially heard (and wrote down) the word ‘obnoxious’ – it struck me quite forcibly at the time. But when I tried to track down Munby’s use of the word in connection with ‘deprivation of liberty’, I couldn’t find anything (although he did use the word ‘obnoxious’ in relation to the values of some religious groups, see his keynote address in 2013 on “Law, Morality and Religion in the Family Courts”). I resorted to Chat GPT which produced an extraordinary hallucinated account of what Munby could have said about obnoxious comparisons between people with disabilities – but there’s no evidence that in fact he said any of it! I think either the judge misspoke, or (quite likely) I misheard him (there was no camera on the judge so I was deprived of the resource of ‘hearing’ supplemented by lip-reading). I am almost certain that what the judge said (or meant to say) and what I should properly have heard was not ‘obnoxious’ but ‘innocuous’ – which is a word that Munby does use in the Court of Appeal judgment (Cheshire West & Cheshire Council v P [2011] EWCA Civ 1257) – no fewer than FIVE times. The judge in the case I’m blogging about here, Simon Burrows, acted as junior counsel for the respondent, the Official Solicitor, in that Court of Appeal case back in 2011, so it might well have stuck in his memory. However, Munby’s point in using the word ‘innocuous’ was nothing to do with comparators, but rather that “a good motive or intention cannot render innocuous what would otherwise be a deprivation of liberty” (§76) – which isn’t the point I understood HHJ Burrows to be making at this stage of the hearing. Munby did make observations about appropriate comparators} _{but without using either the word “innocuous” or the word “obnoxious”: he found that the protected party in the case under appeal was not deprived of his liberty, essentially because P was “living a life which is as normal as it can be for someone in his situation”. Given P’s disabilities, it wasn’t appropriate to compare him with a healthy non-disabled adult. The appropriate contrast to draw is with “the kind of lives that people like [P] would normally expect to lead” (§97). The restrictions and limits on his life were “the inevitable corollary of his various disabilities” (§110), and “there was nothing to show the life he is living at Z House is significantly different from the kind of life that anyone with his concatenation of difficulties could normally expect to lead….” (§110). So, something has got jumbled here. (I am open to correction!)}. _{Many thanks to everyone who responded to my social media and WhatsApp posts trying to figure out what was going on here.}

[4]_{I have checked the judgment to which the judge seems to be referring here (Cheshire West & Cheshire Council v P & M [2011] EWHC 1330 (Fam)) and have not been able to locate this – but possibly it was said in course of the hearings (the judge in this present case, Simon Burrows, having acted back then as counsel instructed by the Official Solicitor). I am happy to be corrected if anyone can locate the source of this claim. This is the first instance Cheshire West case, before Baker J, finding that P was deprived of his liberty. It was subsequently appealed in the Court of Appeal (Cheshire West & Cheshire Council v P [2011] EWCA Civ 1257) where Lord Justice Munby finds that P was not deprived of his liberty, based on comparisons with other people with similar disabilities. Of course, this case then (joined with MIG and MEG) went to the Supreme Court which determined by a majority that all three protected parties were indeed deprived of their liberty – and it’s that Supreme Court decision in Cheshire West [2014] UKSC 19 that was overturned (albeit not definitively in the case of the particular individual P in Cheshire West) in the AGNI judgment.}

1. Background to the hearing

2. The hearing

Oral submissions from the local authority

Oral submissions from the Official Solicitor

Oral decision on capacity

Oral decision on deprivation of liberty following AGNI

Ms Smith in person

3. Reflections

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Background to the case before the court

The hearing

Reflections

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Background

The hearing

The ‘condition’ imposed on the Standard Authorisation

AGNI

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Part 1: Introducing Polly

Part 2: What Cheshire West and DoLS meant for Polly and her family

2.1 When DoLS is irrelevant

2.2 When DoLS has benefits

2.3 When the potential benefits of DoLS are unrealised: A system under stress

2.3.1 Missing DoLS years – unlawful deprivation of liberty

2.3.2 Ineffective DoLS

2.3.3 DoLS paperwork can perpetuate misleading information and errors of fact

2.4 DoLS Harms

3. Looking to the future: objection and consent

4. Conclusion

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A complex case

Residence and care arrangements

Do P’s residence and care arrangements amount to a deprivation of liberty post-AGNI?

Reflections

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Part 2: **What Cheshire West and DoLS meant for Polly and her family**