AGNI: A common-sense judgment or agony?

By Eleanor Tallon, 30th June 2026

Editorial Note: This is the third 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).

For people who consider their loved ones well cared for, safe, and happy, the pre‑AGNI deprivation of liberty (DoL) processes were nonsensical and often intrusive. For that reason, the current judgment brings a sense of relief to many. But for other individuals, whose daily lives are dictated and constrained by institutional or quasi‑institutional regimes, with simple choices removed from their decisional space, and an array of human‑rights abuses hidden behind closed cultures, this judgment may have a more detrimental impact.

While some individuals in these circumstances may not be fully aware of the restrictions imposed on their liberty (or may have grown to accept the narrowed decision spaces they inhabit), many advocates and activists acutely recognise the implications of the judgment and strongly convey a sense of agony.

The positives and negatives of AGNI. 

In many situations, DoLS and judicial authorisations have mopped up the mess created by an under‑resourced health and social care system that has had to firefight and prioritise significant need over promoting human rights.

Article 5 safeguards have effectively compensated for a lack of appropriate or accessible mechanisms to address what are often Article 8 abuses.

There certainly should be accessible safeguards outside DoL processes, and perhaps this judgment will open the door to broader awareness and embedding of human rights and Mental Capacity Act (MCA) principles. I hope it does, and many proactive colleagues are pushing this agenda.

Although the judgment landed as a bombshell, there have been concerted efforts to make practical sense of it, and there are positive aspects to narrowing the objective definition of DoL. 

Rather than the broader ‘bright line’ threshold provided by the acid test, the objective element is realigned with the Guzzardi multifactorial test, which interrogates the degree, intensity, and effects of the restrictions. This encourages a more nuanced assessment of the cumulative impact of the arrangements, in which any coercive approaches are crucial considerations.

Similarly, the greater emphasis on determining wishes and feelings is very much welcomed. Of course, all practitioners should centralise wishes and feelings regardless of this judgment, but it serves as a strong reminder for those who are less conscientious.

Overall, the revised criteria for establishing what constitutes a deprivation of liberty will mean that significantly fewer people will be subject to DoL assessments or authorisation frameworks. This will enable more targeted support for individuals in the most critical need of Article 5 safeguards.

Nevertheless, individuals who struggle to express their concerns, who have no one to speak up on their behalf, or who remain silenced by systems that pathologise their distressed or withdrawn behaviour, will remain invisible^[i]. In particular, this will affect people who are privately funded and who may not be reviewed under any other statutory process^[ii].

Furthermore, there is a real risk of inconsistency and confusion about what this judgment means. Formal guidance will go some way to alleviate uncertainty, but how well that guidance cascades into care settings and day‑to‑day practice is another question. 

The main problems I foresee stemming from AGNI are threefold.

One: the risk that valid consent under Article 5 is conflated with consent more generally, thereby diminishing the understanding that informed consent and the processes set out in the MCA 2005 are fundamental to the delivery of care and treatment.

Two: the risk that compliance and acquiescence are regarded as the accepted standard for valid consent under Article 5, or that such compliance, which may be an ingrained pattern of behaviour, is misconstrued as a positive expression of wishes and feelings. This prompts considerable ethical and philosophical debate, which requires far fuller exploration than I have space for here.

Three: that the purpose and relative normality of the arrangements are now treated as relevant to whether a person is deprived of their liberty, which could be interpreted in a way that minimises the extent and effects of the concrete situation.

In terms of purpose, it would be highly concerning if any health or social care providers were to use restrictive interventions as punishment, rather than solely to keep the individual safe. In practice, the purpose is always likely to be protective; it is therefore unclear what this distinction adds.

As for relative normality, this term functions as an empty signifier, in that the judgment does not define what relative normality means. It is therefore left to subjective interpretation, which may drift into a regressive disablist approach, whereby what is classed as ‘normal’ for a disabled person is positioned differently from that for a non‑disabled person, moving us away from a universal concept of liberty.

In P v Cheshire West and Chester Council [2014], Lady Hale held that it is:

45. [.] axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else. This flows inexorably from the universal character of human rights, founded on the inherent dignity of all human beings, and is confirmed in the United Nations Convention on the Rights of Persons with Disabilities. Far from disability entitling the state to deny such people human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities.

That said, I am optimistic that AGNI will be applied in a non‑disablist manner, with an initial focus on whether the circumstances meet the threshold for confinement under the multifactorial approach (which, arguably, will capture a minority of those previously caught, given the narrowing of the objective definition). Where an individual lacks capacity (under the MCA) to decide on arrangements that amount to their confinement, this should be followed by a holistic evaluation of whether valid consent can be derived from the person’s basic understanding of their situation, and their wishes and feelings over time. I hope this will foster more meaningful, relational engagement with the person and their loved ones during DoL assessments.

Above all, I hope that any financial savings arising from the reduced applicability of the DoL safeguards are reinvested into person‑centred, accessible, rights‑based services. I would urge that wider advocacy mechanisms be made available to safeguard Article 8 rights, beyond time‑limited, issue‑specific advocacy roles such as IMCAs and Care Act advocacy. Article 8 safeguards should be offered to all individuals who remain in restrictive care outside the scope of the AGNI – DoL threshold, including those in privately funded arrangements. 

In summary, AGNI may prompt a much‑needed re‑evaluation of MCA practice; however, for this to be effective, it must be accompanied by an inter‑agency and cross‑sector commitment to meaningful investment in human rights, advocacy, and person‑centred care. Without that, the judgment risks creating more problems than it resolves.

Eleanor Tallon is an Independent Social Worker, Expert Witness, and Best Interests Assessor. Eleanor is also an ESRC-funded Doctoral Training Pathway (DTP) student at the University of Birmingham. Her research focuses on the application of the Mental Capacity Act 2005 in private brain injury case management. Eleanor can be contacted via email [email protected] or through her website mcaprofessional.co.uk and found on LinkedIn or X(Twitter) @Eleanor_Tallon

^[i] HL v UK provides a compelling example of how individuals who struggle to express their concerns can become effectively invisible. HL was treated as having consented to admission because he did not attempt to leave; this was interpreted as compliance. His distressed behaviours, including agitation and self-harm, were medicalised and used to justify continued hospitalisation.

^[ii] Although all adults with eligible needs have a right to an assessment under the Care Act 2014, in practice this may not be realised for “self-funders”. This may occur because individuals or their relatives are unaware of their entitlement to a Care Act assessment, they are given inconsistent information or experience extensive delays due to the prioritisation of other cases. As a result, many self-funders remain outside statutory systems (Henwood et al., 2022).

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 [email protected], and mark your email for the attention of Daniel Clark.