Court of Protection – Case Law Update October 2026

A day will come when a case law update does not mention AGNI. But it is not this day!

We return with the periodic case law update to consider the relationship between Care Act needs assessments and capacity, on a point Baker LJ found that is was ‘puzzling’ that it had not arisen before, and two decisions of HHJ Burrows dealing with the multifactorial test set out in AGNI.

R (TBD) v London Borough of Haringey (Mind Intervening) [2026] EWCA Civ 1184

This was an appeal against a judge’s dismissal of an application for judicial review of a local authority’s assessment of T’s social care needs under the Care Act 2014.

More specifically, the question was whether the local authority was required to carry out an assessment of T’s capacity under the Mental Capacity Act 2005 prior to completing the Care Act assessment. The answer, in short, is yes.

T was aged 25 and had a difficult beginning from birth when he suffered severe neglect. By age 25 he had diagnoses of autism, ADHD, a personality disorder, and speech and language disorder. He suffered from severe anxiety, was prone to self-harm and violent outbursts, had recognised difficulties with relationships, in particular sexual relationships. There had been incidences of aggressive and sexually inappropriate behaviour, and he had been arrested on a number of occasions for various offences.

After one arrest he underwent an independent forensic psychiatric analysis which found his full-score IQ to be 59.

In October 2024 a Solicitor acting on his behalf wrote to the local authority and, amongst other things, urged it to undertake an assessment of T’s needs and review his EHCP.

The local authority responded and completed an assessment on 13 December 2024.

The legality of the Care Act assessment was challenged on a number of grounds, but largely because no capacity assessment had been undertaken before his needs assessment was completed.

The Court of Appeal held:

“...whenever there is a reason to doubt the capacity of a person whose needs for care and support are being assessed under the Care Act, a capacity assessment under the MCA must be carried out by an appropriately qualified professional before the Care Act assessment of needs is completed.

This is clear from the provisions of the Act itself as well as the guidance issued thereunder.” (Paragraphs 91 & 92).

Baker LJ considered that understanding a person’s capacity is integral to the evaluation of their well-being.

93.

First, understanding a person’s capacity is integral to the evaluation of their well-being. The definition of “well-being” in s1(2) includes a number of factors which are affected by an individual’s capacity. For example, when considering, under paragraph (d), the “control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided)”, it will clearly be necessary to consider whether the individual has the capacity to make decisions about those matters. The same applies when considering, under paragraph (e), the individual’s “participation in work, education, training or recreation” or, under (g), their personal relationships.

Secondly, in order to carry out its functions relating to an individual’s well-being under the Care Act, a local authority must, under s.1(3), have regard to, inter alia, the importance of beginning with the assumption that the individual is best-placed to judge the individual's well-being; the individual's views, wishes, feelings and beliefs; all the individual's circumstances, not only factors which might lead others to make unjustified assumptions about the individual's well-being; the importance of the individual participating as fully as possible in decisions being provided with the information and support necessary to enable them to participate; and the need to ensure that any restriction on the individual's rights or freedom of action is kept to the minimum. In assessing these issues, a local authority must have a clear understanding of the individual’s capacity to make decisions in the various domains in which his well-being is under consideration.

Thirdly, there are specific refences to capacity in the provisions in the Care Act about assessments and the preparation of care and support plans. Under s.9(5)(c), the persons who a local authority must involve in an assessment include, where the adult lacks capacity to ask the authority to involve someone, any person who appears to the authority to be interested in the adult's welfare. The same obligation arises under s.25(3) when the local authority is preparing a care and support plan following an assessment. A local authority’s obligation under s.11 to respect an adult’s refusal of a needs assessment is contingent upon the adult having capacity to decide to refuse it. Where the individual lacks capacity to make such a decision, the local authority must carry out the needs assessment if it concludes that an assessment is in his best interests. In order to comply with these provisions, a local authority must, again, have a clear understanding of the individual’s capacity.

Fourth, the requirements imposed by the 2014 Regulations on a local authority carrying out an assessment are also contingent upon the capacity of the individual adult, in particular the requirement to carry out the assessment in a manner which ensures that the individual is able to participate in the process as effectively as possible, to have regard to the wishes and preferences of the individual, and to provide information to the individual in a format which is accessible to the individual to whom it is given.

Fifth, the provisions in the Act and regulations are reinforced by the Guidance, in particular the express words of paragraphs 6.32 and 10.63. Although there was some criticism at the Bar about some of the language in these paragraphs of the Guidance, the core message is clear – when there is a concern about a person’s capacity to make a specific decision, then an assessment of capacity should be carried out under the MCA.

The effect of these provisions is to require local authorities and their social workers carrying out Care Act assessments to comply with the MCA and its Code of Practice. The assessment of capacity must be carried out in accordance with the principles in s.1 of the MCA and the provisions of ss 2 and 3. There must also be compliance with the Code of Practice, in particular paragraphs 4.34, 4.35, 4.38 and 4.42.

The questions which may arise from this decision are perhaps, which domains might a capacity assessor have to address, and when?

The answer to the former lies in paragraph 94 which I have set out above. “A local authority must have a clear understanding of the individuals capacity to make decisions in the various domains in which his well-being is under consideration”.

As to the latter, the answer is found at paragraph 91 of the Judgment “a capacity assessment under the MCA must be carried out by an appropriately qualified professional before the Care Act assessment is completed” (emphasis added). I.e., they need not necessarily be sequential or consecutive endeavours, but must be done before the Care Act assessment is completed.

AR (Whether restrictions amount to a deprivation of liberty) [2026] EWCOP 45 (T2)

AR was a 25-year-old man. He lived most of his life with his parents but had lived in a placement since May 2025. He had been diagnosed as suffering from moderate to severe learning disability and autistic spectrum disorder.

HHJ Burrows sets out the basics of the jurisdiction and the decision to be made under the multifactorial test before setting out Article 5 of the European Convention in full. He then notes:

19. I have included the entire Article just to demonstrate its scope. That is because if, as the Supreme Court says in the NI case, the paradigm example of deprivation of liberty is the prisoner in his cell, the Article's scope strays some distance from that paradigm, particularly in relation to children and those persons of "unsound mind". The NI case makes it clear that it is only those who are closer to that paradigm that should properly be found to be deprived of their liberty.

20. It is, however, also important to note that the purpose of Article 5 is essentially protective. It ensures procedural protection for those who are vulnerable to arbitrary detention. This may be due to the commission, or the suspicion of the commission of a criminal offence. Or maybe unlawful entry into the country. Or carrying contagious diseases. Or being a vagrant. It also includes dysregulated children and young people, a cohort presently of a significant size. It also includes those whose unsoundness of mind ranges from the elderly person in a state of advanced dementia, or a person with a severe brain injury, to the floridly psychotic, the suicidally depressed, homicidal psychopaths and the learning disabled or autistic young person.

21. Those Article 5 is designed to protect are various. Hence, although the idea of a paradigm example of deprivation of liberty may appear helpful, it may also lead to highly restrictive regimes in a community setting appearing not to involve deprivation of liberty, because there are no bars on the windows, no 10-metre-high fence around the placement, and the terminology used may reflect a homely setting rather than a penal one.

Non-secure environments matter. Living in a family home, foster placement, supported living or ordinary home is highly relevant and may point away from deprivation of liberty.
Purpose matters. Protective and therapeutic restrictions are relevant and distinguishable from punitive confinement.
Relative normality matters. The more the placement and care plan resembles ordinary life for a person in P's circumstances, the less likely it is to constitute a deprivation of liberty.
Protective motivation matters. Although not decisive, restrictions imposed for care and safety rather than punishment weigh against a finding of deprivation of liberty.
Objection and consent matter profoundly. A person may lack decision-specific MCA capacity yet still possess sufficient factual understanding to express valid consent for Article 5 purposes. Genuine contentment, acceptance or tacit consent may negate the subjective element of deprivation of liberty. Mere acquiescence, however, may not suffice.

After considering the matters of the objective element HHJ Burrows summarised the relevant principles as he saw them at paragraph 49:

My summary of the relevant principles are these:

HHJ Burrows noted that the restrictions imposed on AR were undoubtedly substantial. AR was subject to 24 hour 1:1 supervision with 2:1 staffing whenever he accessed the community and such access was necessarily controlled by staff, locked external doors and garden gates, window restrictors, occasional physical redirection, CCTV monitoring and highly structured routines.

The social worker considered each of these restrictions to be necessary and proportionate responses to the risks identified and they were each implemented through positive behaviour support, consistency, de-escalation and trauma informed practice.

AR had settled well into the placement:

51. The social worker Ms P's evidence was that AR has remained settled and physically well within his current placement. He is up to date with health reviews, his weight is stable, his diet has improved and there have been no recent reports of rectal bleeding. He participates in a wide range of community-based activities, including swimming, adventure golf, social events and meals out, and staff report that he generally enjoys those activities once engaged. Staff further report significant progress in relation to behaviours of concern, including a marked reduction in incidents of faecal smearing since his move to the placement. Overall, Ms P's evidence was that the structured, predictable and supportive environment provided at the placement has had a positive effect upon AR's wellbeing, physical health and quality of life.

His wishes and feelings were somewhat less clear and the evidence was mixed:

53. In relation to AR's wishes and feelings, Ms P concluded that the evidence was mixed. AR communicated positive responses both to the idea of living with his parents and to remaining at the placement. Whilst he retains a clear attachment to his parents and may prefer to live with them, there is also evidence that he engages positively with life at the placement, enjoys activities available there and does not consistently request to leave or return home. Some behaviours, such as attempts to access locked exits and his refusal to unpack a suitcase brought from the family home, might indicate an ongoing attachment to his previous living arrangements, although their significance is uncertain. Overall, Ms P considered that the evidence established neither a clear objection to the placement nor a clear acceptance of it, and she therefore advised that any assessment of subjective consent should be approached with caution. Notwithstanding that conclusion, her overall opinion was that, although the restrictions are substantial, they are necessary and proportionate protective measures and that, applying the multifactorial approach identified in the NI case AR is not objectively deprived of his liberty.

Noting that AGNI requires consideration of more than just the restrictions themselves in isolation, HHJ Burrows noted:

56. In the present case the restrictions are imposed solely for the purposes of care, welfare and protection. There is no punitive element. There is no element of discipline. There is no element of social control in the ordinary sense.

57. Equally significant is the nature of the placement itself. It is not a secure establishment. It is not a hospital. It is not a custodial environment. Rather, it is a supported living placement in which AR engages in activities, accesses the community, forms relationships and is encouraged to live as full a life as his disabilities permit.

58. The evidence demonstrates that the arrangements exist not in order to confine AR but in order to enable him safely to participate in daily life. In my judgment that distinction is of considerable importance in the wake of the Northern Ireland case.

His conclusions are set out beginning at paragraph 65.

65. In my judgment, and applying the NI case, the following matters are decisive.

(a) AR suffers from a condition that will always require a significant level of supervision. There is a need in his case to ensure a good level of routine and predictability so as to ensure his relative happiness.

AR will always require restrictions on his movement. He will never be "free to leave" wherever he safely resides, and significant control has to be placed on his movements in and out of his residence.
Management of his behaviour will always require a high level of supervision and control, including when necessary, restraint.
Although he is not at his family home, he is at a place which he is able to treat as his own and to personalise his environment. He is able to make friends, and engage in activities in and out of the placement.
These restrictions are in place for his own good, and are intended to ensure the best outcome for him.
Although his residence at the placement involves restrictions, they are far away from the paradigm of the prisoner in his cell, or, for that matter the mental patient in his secure unit.
These arrangements are relatively normal.

66. One issue I raised in argument was the extent to which his parents' issue with his placement was relevant to the issue of Article 5. The importance of this issue was somewhat diminished by the parents' acceptance that AR should remain where he is. However, there is still a dispute over contact. This raises two issues. First, what if AR's parents had submitted that he ought to come home immediately? The consensus at the bar was that objection from anyone other than P is not relevant to whether P was deprived of his liberty. I accept that, although clearly such an objection can have knock-on effects into the care plan (restrictions on contact, for instance) that can increase the intensity of the restrictions imposed on P. Now that a very wide range of matters need to be taken into account in determining whether Article 5 applies, it is important to recognise that contact is now more significant as a factor when determining whether P is deprived of his liberty.

67. That leads to the second point. There will be restrictions on contact with AR's parents, at least initially. These restrictions are relevant to the issue of deprivation of liberty. However, in the context of this case, it seems to me that contact is able to take place, and the availability of contact may increase in line with the order I make. There may be situations where restrictions on contact with friends and family may be such as to change the character of the placement away from a home and closer to a place of detention. This is, in my judgment, not one of them.

68. The decisive features in this case are the protective purpose of the restrictions, the relative normality of the placement, the extent of community participation and the absence of institutional or custodial characteristics. AR is not deprived of his liberty. Article 5 is not engaged.

Re BM (Deprivation of Liberty) [2026] EWCOP 48 (T2)

This is a second decision of HHJ Burrows dealing with the application of the multifactorial test.

He begins with this note which, whilst no doubt correct, is perhaps at odds which the time professionals and practitioners are spending considering and applying this very test.

3. The Supreme Court's intention is that making decisions of this sort should be capable of efficient, relatively speedy despatch. That is what I intend to achieve here. But in recognition of the arguments put forward, I decided to deliver a short judgment.

BM was 16 years old, whilst his primary education was positive and successful his behaviour became increasingly challenging by Year 8, his school attendance deteriorated, he was repeatedly excluded and he had extremely limited formal education since then. He had diagnoses of autism spectrum disorder and severe learning disability, and exhibited many features of pathological demand avoidance.

By 2024 – 2025 BM required substantial support packages within the family home, supervision was 3:1 and at times 4:1. Constant supervision was necessary.

In June 2025, HHJ Bancroft made a final care order endorsing the local authority’s plan for BM to live in residential care. BM’s parents consented to this.

12. BM moved to Placement 1, under the care of Agency 1 in March 2025. He was extremely dysregulated and unsettled at that time. At the beginning of the placement incidents requiring intervention occurred multiple times daily. Connection with carers was limited. Demands were frequently met with physical reactions.

13. The evidence suggests significant improvement thereafter. By late 2025 and throughout 2026 incidents reduced dramatically, communication improved, trusting relationships developed, independence increased, access to the community expanded, and BM became more emotionally regulated. These improvements are all evident from the educational psychologist's report, the care planning materials, the social work evidence and, indeed, the party position statements.

The restrictions placed on his were extensive and outlined at paragraph 21:

The restrictions in place are outlined in Ms Jones' position statement for the LA and are derived from the social worker's evidence:

i) BM is not free to leave at any time;

ii) He is under continuous visual supervision;

iii) There are locked doors and windows to prevent absconding;

iv) There is a minimum of 3:1 staffing 24 hours a day;

v) There are wake and watch staff;

vi) There are locked doors within the home (for the safe storage of medication and harmful products);

vii) Prescribed medication given to BM (Melatonin), although it is not used as restraint;

viii) There is community access which is subject to a dynamic risk assessment based upon behavioural presentation, and

ix) There is a use of physical restraint as a last resort to keep BM and those around him safe- restraint method being PMVA

It was noted that physical restraint was always used as a last resort. In the three months leading up to the hearing, physical restraint has been used on only three occasions.

He was also able to have contact with his parents once per week away from both at the placement and the family home. It was agreed that visits at home would cause him distress.

His wishes and feelings were ascertain able to a ‘significant degree’, paragraph 26 and 27 stating:

...The evidence consistently demonstrates that BM regards the placement as his home, he enjoys living there, has formed meaningful relationships with his carers, participates willingly in the activities available to him and derives comfort from the routines and predictability of the placement. Equally, the evidence demonstrates that he continues to value his relationship with his parents and enjoys regular family contact.

27. However, I do not consider that the evidence permits reliable findings regarding BM's wishes and feelings about the restrictions themselves. Whilst BM's conduct plainly evidences contentment with his lived experience, there is insufficient evidence that he appreciates the nature and effect of the restrictions imposed upon him so as to express a meaningful view about whether those restrictions should continue. His wishes and feelings are therefore ascertainable in relation to the life he presently lives, but not in relation to the legal question of whether that life involves a deprivation of his liberty.

HHJ Burrows conclusions are set out at paragraph 40 to 42:

40. Weighing all the evidence together, and considering BM's situation as a whole, I have concluded that the arrangements do not amount to a deprivation of liberty for the purposes of Article 5. I acknowledge that this is a finely balanced case. The restrictions are extensive. Their intensity would, prior to the decision in NI, have resulted in a finding of deprivation of liberty. However, the current exercise is not a mechanistic one. The restrictions must be understood in the context of BM's disabilities, the purpose they serve, the life they enable him to live, the relative normality of the arrangements for somebody with his needs and, importantly, his own experience of them.

41. I have already referred to the significant restrictions that exist. They include 3:1 staffing, continuous supervision, restrictions on his ability to leave independently, environmental controls and the possibility of restraint. Those are all matters which weigh in favour of a finding of deprivation of liberty. I also accept the force of the ALR's submission that BM is not living the life of an ordinary teenager. He is not in formal education. He has very limited peer interaction and aspects of his life are substantially controlled by others.

42. However, those features cannot be viewed in isolation. Similar levels of supervision were required within the family home before his removal into care. They would have to be present wherever BM lives. The restrictions serve a protective and enabling purpose. They are not punitive. They permit BM to live in an environment which he experiences as safe, predictable and supportive. His placement bears little resemblance to detention in any ordinary sense. Unlike ST, BM does not experience the arrangements as oppressive. Viewed as a whole, they are more accurately characterised as an intensive and highly individualised package of disability support than as confinement. Accordingly, I conclude that BM is not deprived of his liberty.