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 deprived 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) appear relevant 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). Counsel opened 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 would have helped the court to have had better evidence of her capacity available much sooner. Of course, a year since the application, with capacity still contested, 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 (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]. A 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.