When compliance is not consent: Applying AGNI when P is sedated and objecting

By Maria Maier, 21^st August 2026

What if compliance with care is not the same as consent to it?

And what if the medication a person receives may itself affect their ability to object?

These questions were at the heart of a Court of Protection hearing I observed concerning P, a man living in a care home following a brain injury. The hearing (COP 13665011), before District Judge Clarke, concerned a challenge to standard Deprivation of Liberty Safeguards (DoLS) authorisations.

It gave me the opportunity to see how the Court is approaching the Supreme Court’s new, multifactorial test for deprivation of liberty following A Reference by the Attorney General for Northern Ireland (AGNI).

Observing the hearing

I sent my request to observe the hearing remotely (via MS Teams) at 9:14am and joined the link shortly before 2pm, when the hearing had been listed. At 2:04pm, the court clerk joined the call to let me know that the hearing would be slightly delayed and asked me to read the Transparency Order before the hearing began.

The hearing began at 2:14pm. District Judge Clarke asked me to turn on my camera, introduce myself to the Court and confirm that I had read and understood the Transparency Order.

The Judge explained that she could not provide the case summary, chronology or issues of determination that I had requested (in accordance with PD4B para.4.2(a)-(c) COPR 2017, the “Gardner documents”) because the Court had not received them either.

Counsel then introduced themselves. Ms Love of Garden Court Chambers appeared for P through the Accredited Legal Representative (ALR). I could not see her on the video link and, as there are two Ms Loves at Garden Court Chambers, I could not identify her further. Ms Sophie Casely, also of Garden Court Chambers, appeared for the Royal Borough of Kingston upon Thames, alongside two social workers. P’s wife and one of his two sons were also present.

The Judge then asked Ms Love to provide a brief summary of the case.

Ms Love explained that P had suffered a brain injury following a fall and was now living in a care home, where the Local Authority had authorised standard DoLS authorisations.

The proceedings had been ongoing since 2021 and began as a section 21a challenge to the authorisation of DoLS. P’s wishes and feelings had been considered, and he would prefer to return home to his family. However, all parties agreed that this was not a practical option. The stairs at the property and P’s need for 24-hour care meant that his care needs could not be met at the family home.

Alternative placements had also been considered, but everyone agreed that it was in P’s best interests to remain in his current placement.

DJ Clarke added that at the previous hearing, the Court had identified two main concerns. First, there had been no Mental Capacity Assessment or Best Interests Decision concerning the administration of covert medication. Second, there were concerns about the limited opportunities for P to socialise and engage with the community.

Since then, opportunities for social interaction had improved. District Judge Clarke emphasised that it was ultimately P’s choice whether he wished to engage; the Court would not compel him to do so.

This left one outstanding issue concerning covert medication.

When does covert medication require further scrutiny?

The prescribers had still not provided a mental capacity assessment or best interests decision concerning covert medication. DJ Clarke clarified that there was no criticism of either party for this. The Local Authority did not have the capacity to undertake the assessments, as responsibility lay with the prescribers or GP. However, the GP had communicated either an “unwillingness or inability” to become a party to the proceedings.

The Judge explained that there were several options available to the Court. However, the documents in the bundle stated that covert medication had not been administered for over a year. DJ Clarke continued that if covert medication were being administered on an ongoing basis, she might consider a section 49 report, which requires the NHS or Local Authority to provide expert information, or another hearing with evidence. In the circumstances, however, she questioned whether prolonging the proceedings and pursuing a section 49 report would be proportionate or necessary.

Instead, she suggested that the issue could potentially be resolved through a condition attached to the standard authorisation outlining that covert medication should not be administered without a mental capacity assessment and best interests decision.

Considering AGNI, DJ Clarke further clarified that P would likely be deprived of his liberty. The restrictions imposed upon him were strict, and it appeared unlikely that he was consenting to his arrangements. P had objected to them in the past and, even if he were not currently objecting, a number of his medications had a sedative effect which could affect whether any apparent consent was valid.

The Court adjourned for 15 minutes to allow counsel to consider the position.

When the hearing resumed, counsel for the Local Authority said that they wished to take a “cautious approach”. Ms Casely submitted that there remained some lack of clarity from the GP. Although the clinical lead at the care home had stated that covert medication had not been administered for a year, this had not been independently confirmed by the social workers.

However, Counsel for the Local Authority continued, stating that the evidence suggested that P was compliant with his medication and had not been refusing it. Therefore, they felt that a condition attached to the standard authorisation requiring a capacity assessment and best interests decision before any covert medication was administered would be sufficient. Ms Casely continued that responsibility for the assessments would lie with the managing authority and agreed that the condition proposed by the Judge would be sufficient. There was also a current condition requiring medication to be reviewed every six weeks.

The Judge agreed that the condition should provide that covert medication could not be administered without a capacity assessment and best interests decision-making, that these assessments should be completed by the prescribing body, and that there should be a record of any covert medication administered.

DJ Clarke asked Ms Casely to confirm that she agreed there was no need to prolong the proceedings solely for this issue. Ms Casely agreed, saying, ‘Yes, any issues can be dealt with in the conditions and there are no live issues that require a decision from the Court’.

The Judge then turned to Ms Love, counsel for P through his ALR.

Ms Love raised concerns that the Local Authority had not considered the new AGNI test. One of the factors under the new approach is whether a person is consenting to their arrangements.

District Judge Clarke appeared confused by this submission, stating: “we know he is not consenting – that is why you are asking me to make a capacity and best interests decision about where he is”.

Ms Love explained that the Local Authority needed to speak to P and raised concerns that this had not yet happened in relation to his DoLS.

She accepted that the likelihood was that P was deprived of his liberty, but did not want the proceedings to conclude unless the Court was satisfied that the AGNI test was met, as there was insufficient up-to-date evidence.

When asked which factors were not supported by sufficient evidence, Ms Love identified P’s wishes and feelings. Her concern was that the Local Authority did not know P’s current wishes and feelings.

District Judge Clarke responded that, even if P were consenting — although nobody believed that he was — his medication and its sedative effects appeared likely to mean that any consent would not be considered valid.

Ms Love then asked for a statement to be filed that if P is deprived of his liberty that there be a COP 9. She stated, ‘I do not believe the Court could make a mental capacity assessment and best interests decision without all the relevant factors being considered’.

The Judge questioned what exactly Ms Love was seeking, emphasising that a BID was different from a deprivation of liberty.

At this point, District Judge Clarke explained to P’s family what was being considered while giving Ms Love some time to formulate her position.

The Judge explained that there were now two potential outstanding issues.

The first concerned covert medication. P’s wife confirmed that covert medication was not currently being administered, although she said that if P refused his medication, she thought it would probably be best for him to receive it covertly.

District Judge Clarke explained that P’s wife might well be right that covert medication would be in his best interests, but she was not satisfied that it should be permitted without a mental capacity and best interests decision, with input from the prescribers.

She explained that, at the previous hearing, she had not been willing to conclude the proceedings. However, having reviewed the evidence, she was now aware that P was compliant with his medication and that covert medication was not being administered.

The second issue was whether P remained deprived of his liberty under the new AGNI test.

What does AGNI change?

The Judge explained that P had previously been considered deprived of his liberty under the Cheshire West test. Following AGNI, however, the Court must apply a multifactorial approach.

The factors include the length and type of restrictions and how ordinary or normal those restrictions are. Importantly, consideration must also be given to whether the person is consenting and whether they can give valid consent for the purposes of Article 5 ECHR (as opposed to the domestic definition of consent).

The Judge explained that medication regulating a person’s emotional responses could potentially affect their ability to raise or maintain an objection to their arrangements.

This made the question of consent particularly important in P’s case.

P’s wife told the Court that P was in the best place and that the family was happy for the proceedings to conclude. She stated that P “would be horrified if something like this was going on for him”.

The family nevertheless wanted something in place to address covert medication. It did not need to be ‘urgent’, but ‘something should be put in place as we may go through another phase where P rejects his medication’.

DJ Clarke thanked the family for their input and turned to Ms Love.

Ms Love continued to express concerns about what would happen if P stopped taking his medication.

When District Judge Clarke asked what she wanted the Court to decide, Ms Love stated that covert medication should not be administered without a mental capacity assessment and best interests decision.

The Judge then asked a more fundamental question: if that was the desired outcome, what would be achieved by keeping the proceedings open?

Ms Love explained that no capacity assessment had been undertaken specifically in relation to covert medication. She said that she was not comfortable with the issue being dealt with solely by a condition and requested a section 49 report.

On the AGNI issue, she asked the Local Authority to update its DoLS paperwork to reflect the new test.

The Judge repeatedly returned to the question of proportionality. Why should the proceedings continue beyond the hearing if the remaining issues could be addressed through directions or conditions?

Ultimately, District Judge Clarke was not persuaded by Ms Love’s submissions and concluded that there was little benefit in prolonging the proceedings.

Applying the AGNI test: Is P validly consenting?

The Judge then turned to the restrictions imposed on P.

He is subject to onerous restrictions. The doors are locked, he is almost always supervised and is checked on an hourly basis. His placement is intended to be permanent and these restrictions were implemented for his care and support.

The Relevant Persons Representative (RPR) reports showed that P does not consent to his care arrangements. He wants to return to his family home and was previously resistant to the care.

The Court also considered that P is administered psychotropic medication, namely lorazepam. This was another factor indicating that he is not validly consenting to his deprivation of liberty or to the arrangements themselves.

Looking at the factors as a whole, District Judge Clarke concluded that P was deprived of his liberty.

But that did not mean the proceedings themselves needed to continue.

When is it proportionate to keep a case open?

Having concluded that P was deprived of his liberty, the Judge considered whether there was any benefit in continuing the proceedings.

She identified the impact on P, including the possibility that he might continue to believe that returning home remained an option while the proceedings remained open. She also considered the costs and resources involved, as well as the impact on the Court and P’s family.

Taking all of these factors together, she was not persuaded that there was merit in leaving the proceedings open. The remaining issues could be dealt with outside the proceedings.

The Court therefore concluded the matter, while making clear that the position would need to be reconsidered when the standard authorisation was renewed.

The Local Authority would be expected to reconsider the AGNI factors on review. If P’s RPR or family brought to its attention that P had changed his opinion and was consenting to his arrangements, this would also need to be considered.

The Judge intended the order to record the Court’s decisions and the expectation that the Local Authority consider the AGNI factors when reviewing the standard authorisation.

Reflections

As an RPR advocate, I found this a particularly interesting hearing to observe. I was able to see how a section 21A challenge can develop beyond the initial objection and lead to scrutiny of the wider care arrangements. In this case, the issue of covert medication had emerged from the original challenge, demonstrating how these proceedings can prompt examination of aspects of P’s care that may not have been the initial focus of the appeal.

It was also the first time I had observed the application of the new AGNI test in a post-AGNI hearing. The question of whether P was validly consenting was particularly significant, and I was interested to see how the Court approached it in practice. In this case, I was reassured by the focus on the sedative effects of P’s medication when considering whether his apparent compliance could amount to valid consent. However, it also made me question how “valid consent” might be interpreted in cases where there is no obvious factor, such as the sedative effects of medication, which might explain a person’s apparent change in behaviour.

In my work as an RPR advocate, I have had clients who repeatedly object to their DoLS yet become compliant with personal care and medication. This can happen because complying makes daily life easier, or because a person becomes tired of physically resisting their care. Their behaviour may therefore change without their underlying wishes or feelings necessarily changing with it.

I question whether there is a risk that a change from resistance to compliance could too readily be interpreted as evidence of consent. If someone was previously considered to be deprived of their liberty but subsequently appears to consent to their arrangements, it seems important to consider not only whether their behaviour has changed, but why it has changed.

This is particularly significant because a finding that someone is not deprived of their liberty has consequences beyond the label itself. Individuals who are deprived of their liberty benefit from independent checks and safeguards which may not apply in the same way if they are considered to be consenting to their arrangements. There is therefore a potential risk that, if apparent compliance is treated too readily as valid consent, an individual could lose those safeguards without sufficient consideration of whether they have genuinely changed their mind, become resigned to their circumstances, or simply stopped resisting.

Aside from the substantive issues, I thought this was one of the most transparent hearings I have observed. Both for P’s family and for me as an observer, the Court took care to explain the different legal tests, provide context from previous hearings and give P’s family multiple opportunities to raise their concerns. It demonstrated to me the value of the collaborative nature of Court of Protection proceedings: by allowing the parties and P’s family to contribute throughout the hearing, the Court was able to scrutinise different aspects of P’s care and ensure that issues were not overlooked.

Maria Maier is an aspiring barrister with an interest in the Court of Protection. She is currently working as a Relevant Person’s Representative (RPR) and Rule 1.2 Representative for adults who lack mental capacity and are deprived of their liberty under the Mental Capacity Act (MCA).  She has previously blogged for the Project here: Court approves sedative PRN medication  and Five Practical Tips For Observing Your First Court of Protection Hearing  She will begin her Bar Course studies in September 2026. Her LinkedIn is here.