Legal Eagle: The AGNI effect – a new world for the DOLS procedure
In June 2026, the Supreme Court handed down a judgment which has changed the approach to what amounts to a deprivation of liberty. The case of Attorney General for Northern Ireland’s reference (AGNI) has been a monumental shift in the approach which was introduced by the case of Cheshire West and Chester Council & Anor in 2014.
The acid test, which was introduced by Lady Hale, referred to a person being deprived of their liberty if they were under continuous supervision and not able to leave. Whilst this was a particularly broad definition, Lady Hale referred to “a gilded cage is still a cage”.
The AGNI case defers from the test created by Lady Hale after determining the test as “too crude”. Instead, the new law creates, firstly, an objective test. The court has determined that the acid test did not ask enough questions about the individual’s personal experience. The test missed various matters which the new judgement revealed was a vital part of determining what amounts to a deprivation.
This objective element forces professionals to consider whether there is a deprivation of liberty based on various factors such as objection, relative normality and the purpose of the arrangements in place. This is known as the multifactorial test.
For example, in scenarios where a person is subject to a confinement similar to being in a cell; the court would consider that this amounted to a deprivation of liberty. Whereas if they were in a home environment living with their family, but not allowed to leave, this may not constitute a deprivation.
A major change in the approach since AGNI is the decision around valid consent. This is known as the subjective element of the test. Prior to AGNI, a person who lacked capacity would not be able to give valid consent to their placement. The position now is that even if a person lacks the capacity to consent, inferences can be drawn based on their views about where they live, the care arrangements that they receive and their behaviours in the placement.
For example, if a person was living in a care home with locked doors away from their family, but they did not object to their placement, they presented as settled on a consistent basis and generally understood that they were in a care home, the subjective element may say there is no deprivation of liberty.
In practice, it may be difficult to establish where a person can give valid consent and when they can’t. In further guidance provided by DHSC (Department of Health and Social Care), they advise practitioners that compliance does not solely amount to consent. The individual’s wishes and feelings should still be taken into account when considering the subjective element of the test.
The final element to consider if whether the confinement is down to the state i.e whether or not the confinement has been arranged or funded by the local authority or care system. If not, then there would be no deprivation of liberty.
It is clear that the approach to whether someone has been deprived of their liberty has changed significantly following the AGNI case. The implications for the Court of Protection are still unknown, and it will be interesting to see how this case develops in practice.
Ben Hoare Bell LLP has specialist Court of Protection solicitors who can help with issues surrounding the Court of Protection.
To speak to a solicitor please contact us on 0191 275 2626 or email [email protected].