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

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.