After AGNI, are local authorities attempting to conclude proceedings inappropriately?

By Maria Maier, 6th October 2026

In this case (COP 14053038), the Supreme Court judgment intended to clarify when a person is deprived of their liberty (A Reference by the Attorney General for Northern Ireland (Deprivation of Liberty) [2026] UKSC 16, or “AGNI” for short) was used by a local authority as a reason for ending Court of Protection proceedings – prematurely, in the view of the judge. 

The hearing I observed (in person) was before DJ Reeder sitting at First Avenue House on 2^nd October 2026 . Proceedings began in early September 2025, and this was the third hearing in the case (the first was listed – according to the Transparency Order – for October 2025) and the first I observed.

The Local Authority argued that, following AGNI,  the protected party (P) is not deprived of his liberty and that proceedings should therefore conclude. 

But as the hearing unfolded, the judge repeatedly found a striking disconnect between P’s care plan and what is actually happening on the ground.

For P, the reality appears to include both physical and chemical restraint. Yet neither is properly reflected in the care plan. 

As a result, the judge found himself unable to address whether or not P meets the post-AGNI test for deprivation of liberty because he first needs to understand the restrictions P is actually experiencing.

Observing in person

Knowing I had a relatively free day on 2nd October 2026, I checked the First Avenue House listings the evening before and saw three DoLS hearings listed before Tribunal Judge Reeder. I arrived in time for the 10:30am hearing, only to learn it had been vacated. I was advised that the 1pm hearing was likely to proceed, so I returned at 12:35pm and was given a copy of the Transparency Order to read.

On entering the courtroom, Tribunal Judge Reeder asked me to confirm that I had read and understood the Order, particularly the serious consequences of breaching it. He then introduced counsel. The applicant was initially P’s brother (and financial deputy) who is a litigant in person, however I am unsure whether he remains the formal applicant or has been replaced by the Local Authority. The Local Authority (the London Borough of Harrow) was represented by Michael Paget of Cornerstone Barristers. The protected party (P) is a respondent in these proceedings represented, through the Official Solicitor, by Alex Cisneros of 39 Essex Chambers. The judge then helpfully asked Mr Paget to provide a summary of the case for my benefit.

The hearing

The hearing concerned a young man (P) who lacks capacity to make decisions about his care and residence and lives at home with his family. 

The proceedings began in September 2025, after P’s brother asked the Court to determine whether P required a DoLS authorisation at the family home. His application preceded the Supreme Court’s decision in AGNI.

At a hearing after the AGNI decision was handed down, the parties disagreed about whether the restrictions placed on P amounted to a deprivation of liberty and the Court directed the parties to provide updated evidence for the court to make a determination on this. That was the issue before the court for the hearing I observed.

At this hearing, on 2^nd October 2026, the Local Authority’s position was that P was not deprived of his liberty under the new AGNI test and that it is in his best interests to remain living at home. It therefore sought a declaration that P should continue to live at home and attend his day centre, with everyone following the existing care plan. From the Local Authority’s perspective, there is no reason for the proceedings to continue.

The Official Solicitor took a different view, submitting that it remains unclear whether or not P’s restrictions amount to a deprivation of liberty under AGNI, particularly because there has not been sufficient recent evidence or opportunities to establish P’s current position.

The Judge began by questioning the Local Authority’s position. There is an overarching care plan for P at home and at his day centre, but the plan contains no provision for physical restraint. This is significant because, despite the absence of any such provision, P’s family have resorted to physically restraining him on regular occasions. Staff at his day centre are similarly not authorised to use physical restraint but they apparently do not do so: they rely instead on distraction and other techniques.

Judge Reeder identified the difficulties immediately: P spends his days at the day centre but is at home in the evenings and throughout the weekend, so  “the conundrum that is bothering me is that P has different sides to his life”. Moreover, the Judge continued: “Despite there being no proposal for physical restraint, the opposite seems to be true“.

He questioned how the court could conclude that P is not deprived of his liberty when physical restraint is actually being used, particularly when this appears to be happening at home without trained staff. He also raised the issue of chemical restraint, noting that P is taking antipsychotic medication but that there is no reference to chemical restraint in the care plan.

The Local Authority maintained that, although physical restraint had been used, it is not needed and is not authorised. When the Judge asked how physical restraint could be authorised if it did become necessary, Mr Paget explained that it would need to be included in the care plan, or in a Positive Behaviour Support plan, or another form of plan. There is, however, no such provision for P.

The Judge remained concerned. One of the most striking observations he made in the hearing was this: “What is happening on the ground is not what is being conveyed“.

He explained that he needed direct evidence from those providing P’s care before he could be satisfied that physical restraint is unnecessary. When the Local Authority attempted to rely on another document, the Judge was not satisfied that it reflected what is actually happening.

The judge’s frustration was evident: “I need to start drawing the line. These are personal welfare proceedings that began in September 2025. We need to understand what is actually happening and what is in the care plans“.

He noted that this was already the third hearing, yet the court was still trying to establish what was and was not happening in practice. Evidence from a care provider and an appropriate supervisor at the day centre is therefore required.

The Local Authority referred to advice given by a clinical psychologist in 2022, which had suggested using visual techniques to distract P and to avoid physical restraint. However, the Judge was not satisfied that this provided the answer. The evidence was four years old, and, after further discussion, the court found that the suggested techniques had not been adequately shared with P’s family.

The issue of chemical restraint then became more prominent. The Judge asked why the care plan made no reference to chemical restraint when P is taking three medications, each of which has sedative effects and has been prescribed for that purpose. He also asked where the medication is being administered. There was initially some confusion about whether medication is being given at the day centre, before P’s brother clarified that P receives the morning and evening dose at home, with the midday dose administered at the day centre and at a dosage which had been increased in January 2026.

The Judge then returned to the central difficulty. If P is in reality being physically and chemically restrained, while his care plan does not anticipate either form of restraint, how could the Court be satisfied that the arrangements represented the least restrictive option?

The Local Authority nevertheless maintained its position: P is not deprived of his liberty under AGNI and the proceedings should conclude.

Judge Reeder disagreed. He said that there is insufficient evidence to make that decision. He explained that he needed more information to make a best interests decision under section 4 of the Mental Capacity Act 2005 and to ensure that P was subject to the least restrictive option under section 1(6).

The Judge then asked P’s brother to explain what life actually looks like for P at home.

The brother’s evidence highlighted a stark difference between P’s two environments. At home, P lives in a three-bedroom house across three floors with various family members including his mother, sister and another brother with children. The brother, who had made the initial court application , described a recent incident in which P’s sister had woken P up to attend the day centre and he had attacked her, requiring P’s other brother to physically restrain him.

The day centre is very different. P has two-to-one male staff with him and access to several different support workers who use distraction techniques to calm P down. As his brother explained: “It’s a completely different space with different rules, people, equipment to distract him, that’s why they don’t need to use physical restraint and we do“.

He stressed that the family does not want to restrain P and that they regularly try other approaches first. Sometimes this means taking P out in the middle of the night simply to distract him, including driving to McDonald’s at 2am.

This evidence complicated the Local Authority’s suggestion that physical restraint simply should not be happening. It also demonstrated why the Judge was reluctant to determine the case based solely on the written care plan.

P’s brother would like P to move closer to him and requested an independent social worker to help develop a new care plan. He also described longer-term possibilities, including applying for housing in P’s own name, as well as seeking additional paid carers or financial support for family members to take more time to look after P. When asked whether the family would be willing to undertake additional training to best support P, he confirmed that they would.

The Judge made clear that he was not minded to conclude the proceedings that day. He remained concerned about the use of chemical restraint, the uncertainty surrounding physical restraint and, above all, the disconnect between P’s care plan and his actual life at home.

Counsel for P through the Official Solicitor identified the wider significance of the case: “One of the impacts of the AGNI decision is that it has led to Local Authorities attempting to conclude proceedings in inappropriate circumstances.”

The Judge agreed that the starting point had to be evidence “from the horse’s mouth”. He wanted evidence directly from the care service and someone in an appropriate supervisory position at the day centre. This evidence needs to explain what care plan or Positive Behaviour Support plan staff are following, how it is implemented, whether physical or chemical restraint is used often, what techniques are being employed and what threshold triggers escalation. He also wanted evidence about P’s behaviour and safety during transport to and from the day centre, as despite a safety lock and car seat, P had managed to jump out on a recent occasion.

The Judge also asked P’s brother to begin documenting P’s behaviour on a daily basis. He acknowledged the additional burden this placed on P’s family but emphasised the importance of obtaining evidence about P’s life at home. Judge Reeder did not prescribe a particular format but suggested keeping a diary recording episodes of challenging behaviour, the methods used to calm P, and any physical or chemical restraint used. He also requested a one-page spreadsheet setting out the payments made to P’s family and carers, leaving P’s brother and the Local Authority to decide who would provide the information.

The Judge concluded that the care plan itself needed to be reviewed and that the Court needed more “hard-edged evidence”.

Crucially, he made clear that he was not going to determine the AGNI issue (i.e. whether or not P was deprived of his liberty) on the evidence before him.

Instead, he directed the Local Authority to produce an updated version of the care plan and establish what P’s care and support arrangements would actually look like going forward. Until that evidence was available, the existing DoLS authorisation would continue.

The hearing concluded with directions for further evidence, including a statement from the Local Authority addressing physical restraint at home, behaviour and support plans, risk assessments and medication. The Court also sought a recent medication review, information about respite options and fuller consideration of alternative care and accommodation arrangements, including whether the current arrangements were sustainable or whether options such as co-living or weekend residence should be explored.

By the end of the hearing, the proceedings had not been concluded. Instead, the Court had identified significant gaps between the formal care plan and P’s lived reality and required the parties to provide evidence capable of resolving them. 

Reflections

I was struck by Mr Cisneros’ observation that one impact of AGNI has been that local authorities are attempting to conclude proceedings in inappropriate circumstances. This confirmed a worry that I had as an RPR, as I saw a sharp reduction in DoLS authorisations – and therefore in access to independent advocacy support – in the months immediately following AGNI. I was particularly surprised that this case was considered capable of ending when there were still significant questions about what was happening to P.

It was fortunate that the case was already before the Court. Judge Reeder was able to scrutinise the LA’s position and identify the gap between P’s care plan and his life in practice. However, this made me wonder how many people may be left without the same scrutiny if an LA concludes that there is no longer a DoLS and proceedings are not brought before the Court. It should not require family members (like the brother in this case) to make applications for a deprivation of liberty to be properly identified.

The hearing also highlighted the importance of clear, direct evidence. Even at the third hearing, the parties were still trying to establish what was actually happening to P. The Judge’s insistence on evidence “from the horse’s mouth” showed how difficult it is for the Court to make decisions about a person’s welfare when the care plan does not reflect their lived reality. 

As an observer, I found the hearing particularly easy to follow. The Transparency Order was provided on arrival, the Judge gave a clear summary of the case, and all parties spoke slowly and clearly. This made the proceedings accessible not only to me, but also to P’s brother as a family member and litigant in person. .

Maria Maier is an aspiring barrister. She previously worked 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) and she’s published other blogs for the Project. She began her Bar Course studies in September 2026 at the Inn’s of Court College of Advocacy. Her LinkedIn is here.