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Interim Deprivation of Liberty Practice Guidance (AGNI Judgment 2026)

New interim guidance has been published following the AGNI 2026 Supreme Court judgment. Adult Social Care providers are encouraged to review the guidance to understand Essex County Council's current interim approach while further national guidance is awaited.

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Interim Deprivation of Liberty Practice Guidance (AGNI Judgment 2026)

 

Important: This interim guidance supports adult social care provider services in considering whether care arrangements may amount to a deprivation of liberty following the Supreme Court judgement (AGNI 2026). It reflects Essex County Council's current interim approach while awaiting further national guidance. 

 

This guidance is intended to support provider services caring for people aged 18 and over in considering whether care arrangements may amount to a deprivation of liberty following the Supreme Court judgment in AGNI (2026).

It does not replace statutory duties, DoLS processes, Court of Protection applications, or managing authority responsibilities to raise concerns with the relevant local authority, supervisory body, or NHS body where appropriate.

The Council recognises that the implications of AGNI are still being considered nationally and that further clarification may emerge through future case law, government guidance, a revised MCA Code of Practice, and/or guidance or position statements from Department Health & Social Care, Care Quality Commission and ADASS. This guidance represents Essex County Council's current interim practice approach and will be reviewed and updated to reflect any future national direction or statutory guidance.

The Care Quality Commission (CQC) has issued a statement following the judgement, advising that the judgment has immediate effect and that managing authorities should review cases on an individual basis, ensuring they continue to consider whether a deprivation of liberty authorisation may be required. CQC has stated that managing authorities must remain compliant with the Mental Capacity Act 2005, continue to provide person-centred care, and evidence how the individual's views and preferences have been considered within decision-making

The DHSC have also issued interim guidelines, and both documents should be read in conjunction with this ECC interim guidance for managing authorities and the decision of the Supreme Court, links are included below. 

 

The presence of restrictions alone does not determine whether a deprivation of liberty exists.

The central question is whether the person is genuinely accepting the arrangements in which they live and receive care. Where significant restriction is present and there is reason to believe the person does not agree, or may not be able to demonstrate agreement, the managing authority should seek further advice and consider whether a deprivation of liberty authorisation is required.

Following the Supreme Court judgment, the former acid test should no longer be used as the basis for determining whether a deprivation of liberty exists.

Services should consider an objective element, a subjective element and whether the restrictions are the responsibility of the state, this will include the following:

    • The person's overall situation
    • The nature and intensity of restrictions
    • Whether the person is genuinely agreeing to the arrangements, with evidence that their agreement is authentic and not influenced by dependence, acquiescence, fear, sedation, routine, or communication barriers.
    • The person's lived experience of care
    • Whether care arrangements are experienced as support and protection or as control and confinement

When considering whether a deprivation of liberty may exist, services should first consider whether the arrangements amount to confinement. Only where there is confinement is it necessary to consider whether the person is giving valid consent to those arrangements.

Managing Authorities should consider not only what restrictions are in place, but also the duration, intensity and purpose of those restrictions. Restrictions which are in place to provide care and protection may be less likely to amount to confinement than arrangements which override the person's wishes or are experienced as controlling. However, the purpose of a restriction is not determinative on its own and must be considered alongside the person's lived experience.

When considering whether arrangements may amount to confinement, consider the degree of restriction being experienced.

Consider:

  • Would the person be prevented from leaving if they tried?
  • Are doors locked or access restricted?
  • Is there continuous or near-continuous supervision?
  • Are staff making most decisions about daily activities, movement, routines or contact?
  • Is restraint used?
  • Is medication used to manage behaviour or movement?
  • Are seclusion, isolation or segregation used?
  • Are there restrictions that the person experiences as a major intrusion into their life?

Consider whether the arrangements are preventing the person from acting on their wishes or preferences and whether restrictions are being imposed against the person's will. Particular attention should be paid to whether the person experiences the arrangements as a major intrusion into their life.

Services should also consider whether restrictions remain necessary and proportionate. Less restrictive alternatives should be considered and, where they are not adopted, managing authorities should be able to explain why the current arrangements remain necessary to provide care, treatment or protection.

The person's wishes, feelings and experience should be central to decision-making.

Services should consider:

  • What the person says about where they live
  • What they communicate about their care arrangements
  • Whether they appear content with the arrangements
  • Whether they attempt to leave
  • Whether they express a desire to go elsewhere
  • How they respond when restrictions are applied
  • Whether there is evidence of distress, resistance or objection
  • Whether there is a pattern of behaviour indicating acceptance or rejection of the arrangements

Consideration should also be given to the person's previously expressed wishes and feelings and any previously observed behaviour which may help to understand how they view their current living arrangements and support.

Particular attention should be paid to any objections to care, treatment or placement. An objection may indicate that valid consent is not present.

A person may be able to provide valid consent to arrangements even where they lack capacity under the Mental Capacity Act 2005.

When considering consent, compliance alone should not be treated as evidence of agreement. A lack of resistance does not necessarily mean a person is consenting. Services should be cautious about asking whether a person is compliant and instead consider how they know what the person understands, wants and is communicating about their situation.

So instead of asking ‘Is this person compliant?’, services should ask:

‘How do we know what this person understands and wants?’.

Valid consent requires more than an absence of objection. The person must have a sufficient understanding of their situation and circumstances to enable them to express whether they are broadly happy or unhappy with the arrangements. This does not require the level of decision-specific understanding required by the Mental Capacity Act 2005, but there should be evidence that the person has a basic awareness of where they live, the support they receive and how they experience those arrangements.

Services should therefore consider not only the person's subjective presentation or apparent contentment, but also whether the person demonstrates a fundamental or de facto understanding of their situation that enables them to communicate agreement or disagreement with the arrangements.

Where a person is objecting, valid consent is unlikely to be present.

Where a person appears unable to express their wishes, services should carefully consider:

  • Communication needs
  • Previous wishes and feelings
  • Behaviour over time
  • The possible impact of medication on the person's ability to express objection
  • Any medication, including sedative medication, that may reduce, mask or suppress the person's ability to communicate objection or disagreement.

Where there is reasonable doubt regarding whether a person is genuinely agreeing to their arrangements, services should not assume consent.

In these circumstances:

  • Discuss with managers
  • Consider whether a DoLS referral or other legal authorisation may be required
  • Ensure reasoning is clearly recorded
  • Seek advice from the local authority MCA/DoLS service

Where professional opinion is divided, evidence is conflicting, or significant doubt remains regarding whether the person is genuinely agreeing to the arrangements, managing authorities should seek advice from ECC rather than relying solely on internal decision-making.

Where doubt remains regarding whether the person is genuinely agreeing to the arrangements, services should err on the side of caution and consider whether a deprivation of liberty referral or application is required.

Provider service records should demonstrate:

  • What restrictions are in place
  • Why restrictions are required
  • How intensive and ongoing the restrictions are
  • How the person experiences the arrangements
  • The person's wishes, feelings and behaviours over time
  • Any factors affecting communication or expression
  • The rationale for concluding whether the person is, or is not, deprived of their liberty
  • Whether less restrictive alternatives have been considered and, if so, why the current arrangements remain necessary and proportionate

Evidence of the person's understanding of their situation and circumstances, and how this informed consideration of valid consent

The consideration of deprivation of liberty should not be treated as a one-off exercise. Managing Authorities should revisit their analysis whenever there is a significant change in the person's circumstances.

Managing Authorities should review their consideration where there is a significant change in:

  • restrictions or supervision arrangements
  • placement arrangements
  • care and support needs
  • the person's expressed wishes or objections
  • the person's presentation, communication or ability to express their views

Where a review results in significant doubt about whether the arrangements remain lawful, advice should be sought from the relevant local authority MCA/DoLS service.

Last updated: 07/08/2026