This guide is written for solicitors, trainees and law students in England and Wales.
Deprivation of liberty after AGNI is assessed multifactorially rather than by the Cheshire West acid test. The Supreme Court overruled that test on 2 June 2026, restoring the approach Strasbourg has applied since Engel and Guzzardi. It also held that a person who lacks capacity under domestic law can still give valid consent to confinement.
Who this guide is for
Solicitors advising local authorities, NHS bodies, care providers and families on community care arrangements, and anyone with live Court of Protection or High Court authorisations made on the acid test. It also covers the position for practitioners in Northern Ireland, where the reference originated, and in Scotland, since the decision addresses the meaning of Article 5 across the UK.
It is not a guide to the Liberty Protection Safeguards implementation timetable, and it does not address the separate question of when a deprivation is lawful once one is found.
What changed on 2 June 2026?
A seven-justice panel handed down 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. Lord Sales and Lady Simler gave the lead judgment. Lord Reed, Lord Hodge, Lord Lloyd-Jones, Lord Stephens and Lady Rose agreed.
The reference asked whether the Northern Ireland Minister of Health could lawfully issue a revised DoLS Code of Practice under the Mental Capacity Act (Northern Ireland) 2016. The revision would guide professionals that a person aged 16 or over could consent to confinement through words or conduct showing contentment with their care, even without capacity to decide on residence and care.
The Court’s objection to the acid test was threefold. It had never been adopted by the European court. It created a bright line too crude for the range of situations it had to cover. And it produced an over-extensive reading of what Article 5 catches. Because the decision interprets Article 5 rather than any devolved provision, it applies across all four UK countries.
Answering that required the Court to look at the whole Article 5 test, not the subjective element alone. At paragraph 52 it explained why: identifying what someone is consenting to inevitably requires consideration of the objective element. Having done so, the Court applied the 1966 Practice Statement and overruled P v Cheshire West and Chester Council [2014] UKSC 19.
The three elements of an Article 5 deprivation
The framework derives from Storck v Germany and remains intact. What changed is how the first two are assessed.
The objective element is confinement in a restricted space for a significant period. The subjective element is the absence of valid consent to that confinement. The third is that the situation is attributable to the State. All three must be present, and the Court was clear at paragraph 52 that they are considered together rather than in isolation.
How is the objective element assessed now?
Paragraph 53 sets out the answer in eight numbered propositions. The starting point is the specific situation of the individual, assessed by reference to a whole range of factors including the type, duration, effects and manner of implementation of the measure. That is the Engel v The Netherlands (1979-80) 1 EHRR 647 and Guzzardi v Italy (1981) 3 EHRR 333 approach, applied consistently by the European court since. No single factor is determinative.
Four things now bear on the objective element that the acid test excluded:
- the effect of restrictions on the individual, including compliance and the absence of objection where they are capable of objecting or giving tacit agreement
- the relative normality of the placement
- the purpose of the measure, in situations far from the paradigm of confinement in a cell
- the overlap with the subjective element, since assessing type and effects draws in the same circumstances
At paragraph 53(vi) the Court held that the Cheshire West majority had departed from the longstanding multifactorial approach in setting out the acid test, and was wrong to do so.
Can a person who lacks capacity give valid consent?
Yes, and this is the change with the widest practical reach. Valid consent under Article 5 is an autonomous Convention concept. Paragraph 53(ii) is explicit that it is not to be equated with legal capacity in domestic law, nor with the consent needed to waive a Convention right. Paragraph 126 develops that distinction.
The test the Court described has several components. The person must be conscious of their environment. They must have a basic understanding of their living circumstances sufficient to express a view about their situation. And they must manifest acceptance of that situation. Where those are present, the opinion should be respected when the Article 5 assessment is made.
Paragraph 53(v) supplies the counterweight. Ascertaining the true feelings of someone who cannot decide on their own living arrangements is difficult, and the approach should be practical and realistic. Where there is serious doubt, no inference of valid consent should be drawn.
What did the interveners argue?
The Official Solicitor to the Senior Courts in England and Wales intervened specifically to raise concerns about departing from Cheshire West. The Mental Welfare Commission for Scotland intervened in broad support of a wider concept of valid consent.
The Court did not fully adopt any party’s submissions. It was most strongly influenced by the positions of the Secretary of State and the Attorney General. The Mental Welfare Commission’s observations also carried weight, on how much can properly be placed on the views of people with impaired decision-making capacity.
Evidence from the intervening charities produced paragraph 54’s account of the range of communication and care arrangements in issue. That paragraph is the answer to any suggestion the Court underestimated the difficulty of what it was asking assessors to do.
Cheshire West and AGNI compared
| Issue | Cheshire West (2014 to 2026) | AGNI (from 2 June 2026) |
|---|---|---|
| Objective element | Acid test: continuous supervision and control, and not free to leave | Multifactorial assessment of type, duration, effects and manner of implementation; no single factor determinative |
| Subjective element | A person lacking capacity could not give valid consent | Valid consent is autonomous and possible without legal capacity, where the person understands and manifests acceptance |
| Compliance and absence of objection | Irrelevant; contentment did not prevent a deprivation | Relevant to the objective element where the person can object or give tacit agreement |
| Relative normality of placement | Irrelevant; comparison was with a person of unimpaired capacity | A relevant factor in the assessment |
| Purpose of the measure | Not determinative | A factor where facts are far from confinement in a cell |
| Existing authorisations | Made on the acid test | Rest on a test that no longer exists; reassessment required, with no grace period |
| Settings affected | Community and institutional | Logically all settings, including hospitals, care homes, children’s homes, hostels, supported living and private homes |
Practitioners are re-examining live authorisations against a test that did not exist when those authorisations were made, and there is no single place setting out what changed. Case law from 2014 to 2026 on whether particular facts amounted to a deprivation now has to be treated with caution, because much of it was decided by applying a formula the Supreme Court has held to be wrong in principle.
Reassessing a live authorisation: step by step
- Identify the basis on which the authorisation was made. If the reasoning recites continuous supervision and control plus not free to leave, and stops there, it rests on the acid test.
- Describe the concrete situation. Set out type, duration, effects and manner of implementation of the actual restrictions, not the label applied to the placement.
- Assess relative normality. Compare the arrangements to what the placement would ordinarily involve, and record the comparison you used.
- Record the purpose of each restrictive measure where the facts are distant from institutional confinement.
- Gather evidence on the person’s own view. How do they communicate? What have they expressed about where they live and the care they receive? Who observed it and when?
- Reach a view on valid consent against paragraph 53(ii), and apply paragraph 53(v) where there is serious doubt: draw no inference.
- Document the reasoning either way. A conclusion that there is no deprivation needs the same evidential record as a conclusion that there is.
Common mistakes
Treating the judgment as removing community care from Article 5. It does not. Paragraph 54 records that care plans in a person’s own home can involve sedative medication, physical restraint devices and electronic monitoring, and that even a domestic setting can involve a deprivation of liberty.
Reading contentment as consent. Acceptance is a powerful factor, not a conclusion. The person must be conscious of their environment and have a basic understanding of their circumstances before their expressed view carries the weight paragraph 53(ii) gives it.
Assuming a transitional period. There is none. The Cheshire West approach must not be followed from the date of judgment, which means guidance documents built on the acid test have to be read in that light.
Relying on 2014 to 2026 authorities without checking the reasoning. A decision that particular facts crossed the threshold may have turned entirely on the acid test.
Leaving the file silent. Under the old test, the person’s view was largely beside the point, so many files do not record it. That gap is now the central evidential question.
Official sources
- The judgment and case page: UKSC 2025/0042
- Department of Health (Northern Ireland), interim practitioner guidance, HSC circular MCAU 1/26, 23 June 2026
- A detailed practitioner summary from members of 39 Essex Chambers
Our news report on the decision is at Cheshire West overruled: what the AGNI reference changes. For other recent Supreme Court rights decisions, see Dillon (No 2) on the Troubles Legacy Act.
Date last updated
4 August 2026. Further DHSC guidance with case studies has been trailed, and the Court noted at paragraph 55 that provision for settings beyond those covered by the Revised Code will require further consideration. This page will be updated when that guidance appears.