Court of Protection - Case Law Update - AGNI

We return in this edition to the regular case law update. Unfortunately, on this occasion, there are no prizes for guessing which of the cases worthy of attention over the last few months will feature here! It is of course, A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 [2026] UKSC 16, or as it is now affectionately (or otherwise) referred to, AGNI.

I cannot recall an RTM, Conference or Hearing in the last month which has not in some way had to grapple with the confusion caused by the Judgment and the new multifactorial test.

A seven-member constitution handed down Judgment, drafted by Lord Sales and Lady Simler, on 2 June 2026, having determined that: 

1.. The ‘acid test’ set out in case of Cheshire West for identifying the objective element of deprivation of liberty was wrong and departed from Strasbourg case law and instead a multi-factorial approach should be taken; and

2.. A person without mental capacity to make decisions about their residence and care arrangements can give subjective consent to what would otherwise be deprivation of liberty.

Liberty

It is worth starting towards the latter part of the Judgment to set out first, what is ‘liberty’.

Agreeing and adopting the analysis of Professor Eldergill when he discussed the position of a person confined to a bed and so cognitively impaired as to be unable to form the view of moving the Judgment points out:

In that situation, no one is interfering with, limiting or controlling their liberty to do anything they can do [Para 197].

The court goes onto say:

198. This does not result in “liberty” in article 5 meaning something less for those who, because of their impairments, are unable to enjoy that liberty. Nor does it mean that their human rights are in any way different from, or less than, those of an able-bodied person of sound mind. Liberty means the same thing for everyone. As explained in Engel, it means physical liberty, including the freedom to go where one pleases. For those who are unable to do this because they are unconscious, in a minimally conscious state, or so profoundly disabled that they cannot conceptualise leaving let alone physically achieve this, they are not being prevented by a third party from doing something and are not being deprived of anything. The state may in some circumstances be subject to positive obligations (as the Secretary of State accepts) to take reasonable steps to prevent a deprivation of liberty, by, for example, providing a wheelchair or other aid to enable the individual to leave. But that is a wholly different point. 

199. Nor does this amount to discrimination against those who are disabled. We agree with Lieven J that a disabled person in the position of SM is not in a “relevantly similar” situation to a non-disabled comparator (SM, paras 41–44). The non-disabled person is in a fundamentally different position from persons who are unconscious, or in a minimally conscious state, or profoundly mentally and physically disabled. The former is capable of leaving but prevented from doing so. The latter are simply, by reason of their condition, not capable of leaving. It follows that there is no less favourable treatment of people in a materially similar position.

In other words, ‘liberty’ is the freedom to do as, and go where, one pleases. Where one is so profoundly disabled that they are not capable of leaving, they cannot possibly be restrained from leaving. Inability to do something is not a lack of freedom. 

Deprivation of Liberty 

What then, is a deprivation of liberty for the purposes of article 5? 

4. Article 5 of the Convention (“article 5”) is concerned with protection of physical liberty and the protection of the individual against arbitrary interference by the state with his or her right to liberty. In Storck v Germany (2005) 43 EHRR 6 (“Storck”), the European court held that a deprivation of liberty for the purposes of article 5 has three elements: 

(i) the “objective element,” ie the person is confined to a particular restricted space for a material period of time; 

(ii) the “subjective element,” where there is no “valid consent” to that confinement; and 

(iii) attribution, in other words, the state is responsible, either directly or indirectly for that confinement. 

There has in the last month been some discussion as to whether or not the multifactorial approach ought to be taken in stages. I have heard it said that the elements ought not to be considered separately or sequentially at all, and further that P’s own subjective view of their circumstances is determinative as to whether they are deprived of their liberty or not. 

I believe this confusion arises because, as we will see, the objective element contains within it a subjective component, before the subjective element is considered. Indeed, the court itself said it is not always easy to separate the objective and subjective elements of the test. 

Nevertheless, the Judgment does suggest a sequential consideration (albeit with some, occasionally significant, overlap between the two) is the correct approach and that has been the approach often taken by the European court [para 53(iii)]. 

Within the Judgment this separate or sequential view is supported by the consideration of whether there was a deprivation of liberty in the circumstances of two of the individuals at the centre of Cheshire West, MIG and MEG. In undertaking that exercise the court in AGNI considered the elements separately, for example at paragraph 203, pointing out that there were sufficient indications that MIG was happy with her living arrangements to amount to valid consent (the subjective element), but further, her living arrangements were:

 “as close to normal as possible and such minimal element of confinement as existed was for her benefit and protection; though in our opinion the objective element of confinement was not present either. Overall, her situation was very far removed from the paradigm case of confinement in a prison cell.”

The same approach was taken at paragraph 204 when considering the position of MEG, indicating that whilst there is an unavoidable overlap between the objective and subjective elements, they do remain two separate considerations.

Before turning to the objective and subjective elements in turn it is worth setting out in full the Supreme Court’s own summary of their decision in AGNI set out at paragraph 53: 

53. For the reasons explained in detail below, we would answer the referred question in summary as follows:

(i) The starting point in assessing whether someone has been deprived of liberty within the meaning of article 5 is the specific situation of the individual concerned, and the assessment is multifactorial, with account taken of a whole range of factors including the type, duration, effects and manner of implementation of the measure in question. This was the approach set out in Engel v The Netherlands (1979–80) 1 EHRR 647 (“Engel”) and Guzzardi v Italy (1981) 3 EHRR 333 (“Guzzardi”) and it has been consistently applied by the European court since then, and in many different contexts, including the one with which we are here concerned. The judgments of the European court show that no single factor is determinative.

(ii) In addition to the objective element of confinement in a restricted space for a significant period, an individual will only be considered to be deprived of liberty if, as an additional subjective element, they have not validly consented to the confinement in question (Storck). Valid consent is therefore a powerful factor in the assessment. It is an autonomous concept and not to be equated with the concepts of consent for the purpose of waiver of rights under the Convention or of legal capacity in domestic law. The fact that an individual lacks legal capacity to decide on their living and care arrangements does not necessarily mean that they are de facto unable to understand and consent to those arrangements in a manner that prevents those arrangements from becoming a deprivation of liberty (see Stanev, HL and the other judgments of the European court considered below). On the contrary, an individual without legal capacity under domestic law, but who is conscious of their environment and has a basic understanding of their living circumstances so that they can express their view about their situation, who manifests their acceptance of the situation they are in, should have their opinion respected when an assessment is made of whether they are deprived of liberty under article 5.

(iii) Although the objective and subjective elements of deprivation of liberty are often considered sequentially by the European court in its assessment of an applicant’s specific situation, there is an overlap. The requirement to take account of the “type” and “effects and manner of implementation” of the measure in question means that the assessment of the objective element can take account of the specific context and circumstances of restrictive measures that are different from the paradigm of confinement in a cell.

(iv) The approach of the European court means that the effect of restrictions on an individual, including their compliance and the lack of objection if they are capable of objecting or giving tacit agreement, is relevant in assessing the objective element of confinement. The relative normality of the placement is also a relevant factor in this assessment. Similarly, in situations that are far from the paradigm of confinement in a cell, the purpose for which a measure has been taken is a factor to be considered.

(v) The European court has recognised that the process of assessing whether there has been a deprivation of liberty is no easy task in some contexts and may give rise to difficulties, especially in borderline or marginal cases. Equally, it may sometimes be difficult to ascertain the true feelings or preferences of vulnerable individuals who do not have mental capacity to decide on their living arrangements. The approach should be practical and realistic. Where there is serious doubt, no inference of valid consent should be drawn.

It is also necessary to repeat what is said at paragraph 5 of the Judgment: 

The paradigm case of deprivation of liberty is detention in a cell, but so far as article 5(1)(e) is concerned, this has extended to include detention in psychiatric hospitals and certain social care institutions.

The Objective Element

It is of importance to remember from the outset that coercion is a ‘necessary element’ in defining a deprivation of liberty [paragraph 187 & 195]. Whilst also remembering that if P is able, and does, indicate that they are happy with their living arrangements it will ordinarily be difficult to see how they are being coerced [paragraph 189]. 

The Judgment provides a range of considerations peppered throughout that it considers to be relevant in determining whether the objective element is satisfied. 

Starting with paragraph 121 (emphasis added): 

Factors relevant to the objective element include the possibilities available to the individual to leave the restricted area, the degree of supervision and control over their movements, the extent of isolation and the availability of social contacts: Guzzardi, para 95; HM v Switzerland (2004) 38 EHRR 17, para 45; HL, para 91; De Tommaso, para 88; Storck, para 73.

Further considerations are provided at paragraph 136 (emphasis added):

(iii) The duration of the measure, in light of its purpose and the procedural protections enjoyed by the individual: ibid. In our view, in the present context, whilst the duration of the measures in question will often be long, it is significant that they are specifically taken in the individual’s own interests, to care for them and to keep them well and safe (consistently with safeguarding others against harm they might cause, if that is an issue), which again is a factor of greater weight than was the position in Ilias and Ahmed and such border-control cases. Also, it is important to recognise that individuals in care enjoy a range of personal protections under the regimes applicable to them, including rights to independent external reviews and audits by qualified professionals (see para 10 above) and to express their own views and preferences and have them taken into account. This helps ensure that the measure is applied only for as long as necessary.

(iv) The nature and degree of the actual restrictions imposed on or experienced by the individual: ibid. In many cases of those in care, the restrictions imposed may be fairly limited (eg locking the doors of a care home to stop individuals who are not capable of looking after themselves from wandering into the streets), may allow for social contacts to be maintained, and in all cases are required to be in line with the purpose referred to in subpara (iii) above. Where restrictions become progressively more intrusive, it will be relevant to consider whether they are imposed in response to an increase in the need in a particular case to protect the individual and/or the interests of others. As Ilias and Ahmed, para 217, makes clear, the subjective experience of the individual affected is relevant. If they do not experience a restriction as a major intrusion in their life, that tends to indicate a classification as a restriction on liberty of movement rather than as a deprivation of liberty.

Paragraph 136(iv) is where the subjective component of the objective element begins to come into play. The subjective experience of P in response to the fact of the restriction is relevant. For some the fact of a locked door, or a requirement for support in the community, may not have any negative subjective effect on them, for others the effect may be felt much more acutely and cause significant distress. 

This is supported at paragraph 187: 

The effect of restrictions on an individual is liable to differ according to whether they are content with or object to their living arrangements, and it is therefore relevant to consider the effect of the living arrangements on them: see, for example, W City Council v L [2015] EWCOP 20; (2015) 18 CCL Rep 350. If an individual objects to the arrangements, this is likely to result in conflict. There may be arguments, attempts to leave a particular place, expressions of a wish to leave, or conduct showing a wish to leave. The resulting stress for the individual in having their objections overruled may lead to suffering and result in the use of physical force or physical restraint. These features of the individual’s concrete situation are likely to be clear indicators that they are being confined, in the sense of suffering a deprivation of liberty.

The purpose of the measures is also relevant, a matter which was previously discounted in Cheshire West [paragraph 200]. Also relevant, as outlined in paragraph 193, is the ‘relative normality’ of the placement: 

The effect of the restrictions on an individual living in their family home with their family, or living in their own home, with opportunities for leaving the place of residence for recreation, education or social contact, is likely to be very different from the effect on an individual held in a psychiatric hospital or a prison… if an individual is living in their own home, in accordance with their wishes and feelings, it makes it less likely that the individual is being subject to a deprivation of liberty within the meaning of article 5. Put another way, the restrictions imposed would need to be more severe or extensive to amount to such a deprivation, such as, for example, a combination of restraint, medication, and seclusion.

On the topic of medication, the court also noted that the presence of sedative medications would be relevant where the effect of those medications is, or may be, the suppression of objections [paragraph 188]. As will be seen below in the consideration of MEG’s case in Cheshire West, the purpose of the medications, even if they have a tranquilising effect, may also be relevant. 

The Subjective Element 

The crux of this element is relatively simple in contrast to the objective element. In short, the test for whether a person is able to give subjective consent to a deprivation of liberty is lower than the test for capacity under the Mental Capacity Act 2005.

In the Supreme Court’s own words at paragraph 53(ii) (with apologies for duplicating a quote already set out above): 

…an individual without legal capacity under domestic law, but who is conscious of their environment and has a basic understanding of their living circumstances so that they can express their view about their situation, who manifests their acceptance of the situation they are in, should have their opinion respected when an assessment is made of whether they are deprived of liberty under article 5.

This is reiterated again, at paragraph 201: 

A person may not have mental capacity to make decisions about their care and residence arrangements, but if they have a basic level of awareness and consciousness of their living arrangements that is sufficient to enable them to know and communicate whether they are happy or unhappy with them, they may be treated as able to give or withhold valid consent to confinement by an expression of their wishes and feelings.

A significantly complicating factor in the subjective element is found at paragraph 164: 

…when assessing whether there is a deprivation of liberty under article 5, the mere fact that the individual concerned is incapable of expressing any view does not lead to the conclusion that the subjective element of a deprivation of liberty is made out. On the contrary, in an appropriate case it may lead to the conclusion that the subjective element is assessed by reference to the view of the person with authority to make decisions for the individual, in their best interests.

If therefore, a person is not capable of expressing a view but has previously granted an LPA to another, does this mean that the donee’s view may be sufficient to provide valid consent? That is an issue the courts will have to grapple with. 

Cheshire West; MEG & P

Earlier in this article, I mentioned the Supreme Court’s views on whether MIG was deprived of her liberty in Cheshire West. 

The Court also gave their view on MEG, and (whilst reserving their view on P) gave comment on the case of P in Cheshire West. The cases of both MEG and P were more nuanced. 

For example, MEG lived in an NHS facility, received tranquilising medication, she was physically restrained on occasion and had occasional upset outbursts. Nevertheless, the Supreme Court considered that neither the objective nor subjective elements for a deprivation of liberty were mad eout: 

204. We also consider that MEG was not subject to a deprivation of liberty. There were sufficient indications that she was happy living in the NHS facility where she was placed as to amount to valid consent to being there. She showed no wish to leave the facility or go out on her own. Although she received tranquillising medication, that was not administered with a view to disabling her from forming a view about her living circumstances and does not seem to have had such an effect. The basic pattern of MEG’s response to her living environment was that she was happy to be there, even if there were occasional upset outbursts from time to time. We also consider that the objective element of a deprivation of liberty was not present. The living arrangements were as normal as possible in the circumstances, and the continuous supervision and control to which she was subject were directed to meeting her care needs rather than to making her a prisoner. Although she was physically restrained on occasion, that was done for her own protection or for the protection of others, and not with a view to punishing her. Overall, again, her situation was far removed from the paradigm case of confinement in a prison cell.

In respect of P:

205. We would prefer to reserve our opinion about the situation of P. We have not heard argument about his case, and we note that this court in Cheshire West came to the unanimous view that he was subject to a deprivation of liberty. We are not in a position specifically to overrule that part of the judgment. Nonetheless, it seems to us that there were many features of his case, as described by Baroness Hale at para 17, which would tend to indicate that he was not subject to a deprivation of liberty. We would be doubtful that when P was living at home with his mother, as he did until the age of 37, that constituted a deprivation of liberty. When he moved to Z House, the basic arrangements continued and everything was done to provide care for him in a similar way and in as normal an environment as possible. It is not obvious that P’s case bore any real similarity to confinement in a prison cell. It suffices here to say that we have some sympathy with the view of Munby LJ in the Court of Appeal that he was not subject to a deprivation of liberty.

It is of interest that in the Supreme Court’s consideration of the circumstances of MEG, MIG, and P each make explicit reference to the similarity or lack thereof, to the paradigm case of deprivation of liberty in a prison cell. It also makes reference to the continuous supervision and control being directed to care rather than ‘making her a prisoner’, and restraint being used for her own protection rather than ‘to punish her’. 

Conclusion

It will take time for the dust to settle and there will undoubtedly soon be test cases which may offer some guidance as to how the multifactorial test ought to be approached, but it appears on the face of it, and in particular in light of the court’s view on MIG and MEG, that the bar for what now constituted a deprivation of liberty has been lifted considerably, meaning many who had their liberty deprived, now simply have their liberty restricted. 

Local authorities are beginning to review standard authorisations with a view to termination, and there will no doubt be a noticeable drop in Re X applications, likely significantly so given the need for ‘more severe or extensive’ restrictions where one resides in their own home.