What happens to restricted patients after AGNI? SJ Hilder considers the consequences

By Gill Loomes-Quinn, 2nd August 2026

At first sight, this appeared to be a straightforward example of the post-AGNI legal framework in practice. All parties in this case (COP 13040188, heard by Senior Judge Hilder on 6 July 2026) agreed that the care and residence arrangements for the protected party (P), a man in his 60s with a moderate learning disability, no longer amounted to a deprivation of liberty following the Supreme Court’s decision in AGNI. ^[1]

P had previously been the subject of a community deprivation of liberty (COPDOL) order. However, he was not locked in or otherwise prevented from moving around his home. He was not subject to restraint, seclusion or sedation. According to his sister, who was a party to the proceedings, he was happy and settled in his placement. The applicant local authority therefore invited the court to discharge the COPDOL order.

But there was a complication. The P in this case is a “restricted patient”, living in the community under “conditional discharge”.

Restricted patients are individuals who have previously been detained under the Mental Health Act 1983 following serious offending or behaviour that presents a significant risk to others. They may be discharged from hospital subject to conditions designed to protect the public while allowing them to live safely in the community. Those conditions commonly include living at a specified address, taking prescribed medication and avoiding contact with particular individuals. Compliance is typically supervised by a responsible clinician and a social supervisor, with guidance issued by HM Prison and Probation Service. There were just over three thousand “restricted patients” at the end of 2024, according to the Ministry of Justice).

The impact of AGNI on these conditionally-discharged “restricted patients” doesn’t seem to have been considered before.

Background to the case before the court

The protected party in this case had been charged with attempted rape and indecent assault, but found unfit to plead by reason of mental impairment.  After first being detained in hospital under s.37/41 Mental Health Act 1983, he was later granted a conditional discharge by a first-tier Mental Health Tribunal and moved to his current residence. The conditions of his discharge include continuing to live at his current location. He must also permit reasonable access by professionals, comply with treatment plans, and engage with clinical services (all of which he seems to be doing).

P is deemed to lack capacity regarding his care and support arrangements, and in July 2023, the court granted the applicant local authority a final order in COPDOL (used for those deprived of their liberty in community settings rather than in hospitals or care homes). P’s sister was appointed as his Rule 1.2 representative.

The local authority subsequently failed to carry out the required review of the authorisation, leaving P’s deprivation of liberty unauthorised for a period. It made a fresh application on 13 March 2026, shortly before the Supreme Court handed down its judgment in AGNI.

The application was initially dealt with under the streamlined ‘Re. X’ procedure – i.e., without a hearing – but was subsequently ref­­­erred to SJ Hilder because of concerns about P’s status as a “restricted patient” subject to a s.37/41 order.  Before the hearing I observed, SJ Hilder had already invited the Official Solicitor to join the proceedings and made P’s sister a party. She had also directed that the Secretary of State must be notified of the application by 26^th June 2026 – also because of concerns about the s.37/41 order

Following the Supreme Court’s decision in AGNI on 2^nd June 2026, SJ Hilder directed the preparation of an ‘AGNI update’.  This required the applicant to apply the multifactorial test set out by the Supreme Court in order to determine whether P’s care and living arrangements continued to amount to a deprivation of liberty. The test requires the following:

1. A narrative account, including specifically:

1) a description of P’s home setting;

2) an itemised list of restrictions in place for P, including specifically any physical restraint and/or CCTV monitoring;

3) an account of any medication taken by P, including how frequently and in what circumstances PRN medication has been administered in the last 6 months.

4) An account of P’s discernible understanding of, and response to her/his care and living arrangements.

B) The applicant’s position as to whether P is deprived of her/his liberty as per AGNI.

The applicant’s position is  that P lives in an “ordinary bungalow” that he has successfully occupied alone for several years. Restrictions are in place for reasons of “care, support, welfare, and risk management”. They are “not punitive” and, as the alternative may be a recall to detention, the arrangements may be said to promote rather than restrict P’s liberty. Supervision is described as “supportive” rather than “coercive” and P moves freely around his home, with participation in community activities being encouraged. There are no locked doors, physical or chemical restraints or isolation, and the arrangements are described as “typical” for someone with P’s needs, vulnerabilities and conditions of discharge[2]. Indeed, the applicants contend that the arrangements are far removed from the paradigm case in AGNI.

The evidence of P’s wishes and feelings pointed in the same direction. Reports from his support staff, psychiatrist and social supervisor consistently described him as happy in his placement and positive about both his home and those who support him. He was said to be “settled, stable, and content”. There had been no attempts to leave, no refusals of support and no indication that his care arrangements caused him distress. Nor was he prescribed medication that might suppress his ability to express his wishes or feelings.

Taken together, the evidence led the local authority to conclude that P was no longer deprived of his liberty under the post-AGNI framework. It therefore invited the court to:

• Grant permission for the LA to withdraw the application for authorisation of a DoL.
• Discharge the Official Solicitor (if appointed).
• Conclude the proceedings.
• Make no further welfare orders.

The hearing

The hearing was listed for 14:30 and began at 15:10 with the court clerk explaining that SJ Hilder had so far had a “very, very heavy day”. The parties were:

• The applicant local authority (Wigan Borough council) represented by  Matthew Stockwell,
• P (the first respondent ) who was not present in court and was unrepresented – the Official Solicitor having declined to act on the basis that the relevant financial criteria had not been met;
• P’s sister (the second respondent), a litigant in person.

Counsel for the LA  outlined their position, specifically that the requirements for a DoLS authorisation have been changed by the decision of the Supreme Court in AGNI and as a result P is no longer to be considered as deprived of his liberty. He acknowledged P’s “slightly curious” position, in being subject to conditions attached to his conditional discharge and said this puts a “slightly different complexion” on the (DoLS) restrictions. The judge reflected back her understanding of his position as being that “while there’s an element of coercion to the conditional discharge, I think your position is that’s irrelevant because he’s happy to stay there anyway?”.   Counsel for the LA  confirmed P appears happy and content and that rather than having the effect of constraining his liberty, the restrictions in place allow him to enjoy his freedom.

Senior Judge Hilder accepted the broad thrust of the local authority’s submission but she considered that the restrictions arising from P’s section 37/41 conditional discharge presented a more significant obstacle to discharging the COPDOL order right away.

SJ Hilder pointed out that “the Mental Health Tribunal’s position was it was waiting for DOLS to be in place before it discharged P from detention. The DOL order put boundaries on P”. Those were:

• He must reside in his current home and allow people to enter.
• He must comply with medication and other treatment.
• He has to engage with, and meet his clinical team.

None of these boundaries are time-limited so they continue to apply.

This framework of boundaries imposed by the DoLS Order reproduces the conditions of P’s conditional discharge.  A finding that, post-AGNI, P may no longer be deemed to be deprived of his liberty may therefore pose a significant risk to the set of legal restrictions that enable P to continue to live in the community instead of being returned to detention. That is certainly one reading of the Guidance from HM Prison and Probation Service, which says: “If the DoLS has expired then the implication will be that the Secretary of State will seek the recall of the patient to hospital due to the risks the patient may pose to themselves or others if they were not subject to the restrictive measures imposed by the DoLS authorisation. Please refer to Section 8 of this guidance for further actions where the DoLS has lapsed and will not or cannot be renewed and restrictive measures are still required to keep the patient and the public safe.”

In this case, AGNI means that the DOLS “will not or cannot be renewed” and it seems that  “restrictive measures” are not required.

The  most recent “Supervised discharge guidance” (18^th February 2026)  – guidance that uses the Cheshire West definition of deprivation of liberty – says specifically: “If a team is considering seeking the removal of, or addition of, the conditions amounting to a deprivation of liberty for a patient they should contact the MHCS [Mental Health Casework Section]  to discuss the matter” (7.5).

Strictly speaking, that guidance does not apply to the present case.  No one is proposing to remove or add conditions. Rather, the conditions remain unchanged, but their legal character has altered because of AGNI.

Nonetheless, it’s not surprising that  SJ Hilder’s position was that both the Secretary of State and P’s Responsible Clinician should have an opportunity to make submissions before the proceedings were concluded. And while there seemed to be some confusion in court over whether (and when) these bodies had been made aware of the case it was agreed that neither of them had responded.

The judge therefore made an order stating that the court was considering terminating proceedings with no order or requirements on residence and care, and “wishes to be clear that the Secretary of State and the Responsible Clinician have had the opportunity to make submissions”.  The LA was required to “provide a copy of this Order to the Secretary of State and Responsible Clinician within 3 days of themselves receiving a copy. Both should then be invited to provide to the court in writing by 4pm on 3^rd August 2026 an explanation of any submission they wish to make.” There was also a final provision that the matter be referred back to the judge for her to consider on the papers – as she confirmed that she didn’t intend to “trouble” the parties to come back to court “unless I need to”.

In subsequently explaining the proceedings that had just taken place to P’s sister (who, as a litigant in person, indicated that she had struggled to follow) the judge clarified, in lay terms,  the role of the DoLS in the framework of conditions and “boundaries” implemented with the aims of enabling P to live in the community while managing the risk of any further offending and thereby keeping the public safe. She concluded with an encapsulation of the challenge posed to multiple statutory agencies by the impact of AGNI on this case: “The bottom line here is no one wants a disaster to happen because boundaries have been taken away. Least of all P”.

Reflections

This case is an ‘on the ground’ illustration of the seismic shift in what it means for disabled people to be deprived of their liberty post-AGNI. The complexity in the particular background to this case (notably the restrictions imposed by the s.37/41 conditional discharge and the interaction between this legal framework and the DoLS) highlights the scale of the potential impact of AGNI, and the task facing public bodies across health and social care as a result: to avoid “disaster” while navigating this new legal terrain.

Gill Loomes-Quinn is co-director of the Open Justice Court of Protection Project. She is a disabled scholar-activist with an interest in the impact of mental capacity law on the ‘Social Voice’ of disabled people and communities.  She can be contacted through the Project.

[1] _{I have used contemporaneous notes and a summary of the case provided by HHJ Hilder at the start of the hearing along with the applicant’s position statement (provided after the hearing) to put together this background. As recording of court proceedings is, of course, not permitted any quotes from the hearing itself are as accurate as possible but should not be assumed to be verbatim.}

[2] _{Note that this construction of P’s living arrangements seems illustrative of a return to reliance on the concept of “relative normality” to determine whether an individual’s circumstances represent a deprivation of liberty. According to this approach (applied by LJ Munby on appeal in Cheshire West & Chester Council v P [2011] EWCA Civ 1333), the relevant comparator to use when determining the “normality” of a disabled person’s living conditions is not the “able-bodied man on the Clapham Omnibus” but rather a person with similar disabilities to herself or himself: arguing that the disabled person is “inherently restricted” by virtue of their impairment [35] – and therefore that they may be deprived of their liberty due to the impact of their impairment without this being attributable to their living conditions or social arrangements . This approach has been widely criticised as individualising and medicalising the concept of disability; and failing to recognise the impact of living arrangements and other social factors in depriving a disabled person of their liberty (e.g., Clough, 2015; Series, 2022). In overturning the relativist approach at the Supreme Court (P v Cheshire West and Chester Council [2014] UKSC 19), Lady Hale appealed to the universality of human rights – notably Article 5 – stating that “what it means to be deprived of liberty must be the same for everyone, regardless of whether or not they have physical or mental disabilities” [46]. In substituting a ‘relative’ comparator in the post-AGNI understanding of the ‘normality’ of a person’s living condition, it appears worryingly as if the court may be abandoning the universality of human rights claims in the post-carceral care system and returning to a framework where the rights of a disabled person are fundamentally framed by their impairment and are unequal to those of a non-disabled person.}