A Significant Change for Deprivation of Liberty Practice
The recent Supreme Court ruling (called “AGNI”, 2 June 2026) overturning the long-standing Cheshire West approach is the most significant change to deprivation of liberty practice in more than a decade.
For social care providers, the judgment raises important questions about how care arrangements are assessed, documented and reviewed for people who may lack capacity under the Mental Capacity Act 2005. It will also have significant implications for how organisations approach Deprivation of Liberty Safeguards (DoLS), deprivation of liberty in the community, and wider decision-making around restrictions and consent.
While the full impact of the ruling will become clearer over time, providers should begin responding now – there is no implementation period or delay. The law has changed with immediate effect. Strong governance, clear documentation and person-centred decision-making are likely to become more important than ever.
What Has Changed Following the Cheshire West Ruling?
Since 2014, the Cheshire West “acid test” has been central to decisions about whether a person is deprived of their liberty.
Following the Supreme Court judgment in AGNI, we know now that the “acid test” was too simplistic, and providers now need to consider a wider range of factors when assessing whether care arrangements amount to a deprivation of liberty, including:
- The person’s wishes and feelings, any objection, and the use of coercion (and in particular,
any medication that might suppress any objection) - The effect of their care arrangements on the person
- The nature and duration of restrictions
- Their relative normality, context and purpose
While the full implications of the ruling will continue to emerge, the direction of travel is clear: understanding the individual and their experience of care arrangements is more important than ever.
Valid Consent
A new and very significant aspect of the ruling is the idea of “valid consent” to the restrictions.
The AGNI judgment says that even where a person lacks capacity under the Mental Capacity Act 2005 for decisions about their care and accommodation, their views and behaviour can show that in fact they are “happy” with the arrangements, and that this can be “valid consent” for the purposes of Article 5 ECHR (the right to liberty) and stop it being a deprivation of their liberty.
This means providers will need to ensure that people are given information in ways they can understand and that their wishes and preferences are actively sought, recorded and considered.
Importantly, “valid consent” in this way should not be confused with passive acceptance. And though the court’s approach to “incapacitous consent” for the deprivation of liberty could cause confusion about this, it is really important for providers to understand that someone who lacks capacity for decisions about care and treatment cannot consent for those purposes, and best interests decisions still have to be made, per the Mental Capacity Act.
Providers will need to demonstrate that they have taken reasonable steps to understand the person’s perspective, support communication and ensure their voice is heard.
Putting the Person’s Voice at the Centre of Decision-Making
The ruling places greater emphasis on understanding the individual’s wishes, feelings and experience of their care arrangements.
For providers, this means moving beyond assumptions and ensuring a person’s views are actively sought, appropriately supported and clearly reflected in care planning and decision-making.
Just as importantly, those views should be reviewed regularly. Demonstrating that decisions remain necessary, proportionate and person-centred is likely to become increasingly important.
Legal Implications
It is important to understand that this is just about how the law sees the restrictions that are in place, on the basis of best interests decisions, and whether they should trigger extra safeguards under Article 5 (right to liberty), such as DoLS, and applications to Court. As such:
- The fundamental thing is still to get the MCA right first – assess someone’s care needs, and the options available to them, then whether they can make that decision for themselves, and if not then make a best interests decision for them, meeting their best interests in the least restrictive way.
- There is no reason why the care for any person should change after the AGNI judgment – it is just that what might before have been thought to be a DoL is not now.
- Whether or not there is a DoL, there are still other safeguards – other rights, including the right to private and family life (Article 8 ECHR) that might need applications to court, and the proper use of the MCA, Care Act, safeguarding etc.
- Providers will want to think about their response where they have a DoLS authorisation (or a court order authorising a DoL) in place but they no longer think that person meets the definition of a DoL. Those DoLS authorisations/court orders will not need to be renewed when they lapse, and in some cases it might be appropriate to take active steps to have them discharged sooner; but this should not change the care that is being provided, which should rest on fundamental, good quality MCA decision making.
What Care Providers Should Do Now
Although the full implications of the judgment will continue to develop, there are several practical steps providers should consider now:
1. Review Policies and Procedures
Mental Capacity Act, consent and deprivation of liberty processes should be reviewed to ensure they remain aligned with the changing legal landscape.
2. Strengthen Documentation and Evidence
Best interests discussions, capacity assessments and care planning decisions are likely to come under greater scrutiny.
Providers should ensure there is a clear record of:
- The person’s wishes and feelings
- How those views were gathered
- Why restrictions are considered necessary
- How decisions have been reviewed
- The rationale behind key decisions
Clear evidence and decision-making records will be increasingly important.
3. Prepare Teams for the Changes
Frontline teams and managers will need support to understand what the judgment means in practice and how this may affect everyday decision-making.
Training, briefings and ongoing conversations will play an important role in helping staff apply the principles consistently.
4. Stay Alert to Further Guidance
Local authorities, commissioners and legal professionals are continuing to interpret the judgment.
Inevitably, there will be lots of case law trying to apply the new AGNI approach to various situations in practice, and this might be contradictory while a clearer picture evolves.
The increased complexity and subjectivity in the criteria for a DoL are also likely to generate uncertainty and inconsistency both within and between organisations, and so benchmarking and sharing best practice is important.
Providers should monitor developments and case law closely while beginning their response now rather than waiting for formal guidance. The law has changed with immediate effect.
How QCS Can Help
As the sector adapts to this significant change, providers need more than information. They need trusted guidance they can act on.
QCS is already reviewing the implications of the judgment and updating guidance to help providers understand what has changed, what action may be needed and how to evidence good practice.
Because when decisions are scrutinised – confidence, consistency and evidence matter.
