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 2002681) 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 but 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 another (different) care home, where he lived for nine months after hospital discharge. His current care home is closer to his son; 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 “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 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 1 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. That application was refused because the judge 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 was concerned about 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 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 (from the judge)

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)