Last reviewed: 4 October 2026. On 2 June 2026, the UK Supreme Court handed down its judgment in A Reference by the Attorney General for Northern Ireland ([2026] UKSC 16), commonly called AGNI. The judgment departed from the Cheshire West approach. The Department of Health and Social Care says the change applies with immediate effect across the UK.
This summary is for general information. It does not replace an individual assessment, current statutory guidance or advice from the relevant local authority or legal adviser.
What changed?
The “acid test” of continuous supervision and control and not being free to leave is no longer sufficient on its own. The assessment must consider the person’s concrete circumstances as a whole. Relevant factors include the type, duration, effects and manner of implementation of restrictions. Other relevant considerations include the person’s wishes and feelings, the setting and how ordinary the arrangements are, and the purpose of the measures. No single factor decides the question.
The judgment also distinguishes legal capacity under the Mental Capacity Act 2005 from “valid consent” for this purpose. A person who lacks capacity to decide about care or residence may still be able to express whether they accept or are happy with the arrangements, if they have sufficient awareness and understanding. Compliance alone does not establish consent. Where there is serious doubt about the person’s wishes or ability to express them, no inference of valid consent should be drawn.
Practical steps for care providers
- Assess the actual arrangements. Record the restrictions in place, their duration and effects, how they are applied, and how they affect this person. Do not use the former acid test as the only decision rule.
- Find out and record the person’s wishes and feelings. Consider how they communicate, what they understand about their arrangements, and whether their views change. Do not treat quietness or compliance as proof of agreement.
- Continue Mental Capacity Act duties. The AGNI judgment does not remove the need for capacity assessments, best-interests decision-making or other applicable care and safeguarding duties.
- Use safeguards where there is doubt. DHSC advises continued use of DoLS processes in hospitals and care homes, and court processes in other settings, where there is doubt about deprivation of liberty, valid consent, significant restrictions or whether Article 5 is engaged. Seek local authority or legal advice for individual cases.
- Review existing authorisations carefully. DHSC says cases should be reviewed as soon as practicable where a person may no longer fall within scope. An existing authorisation does not automatically end because of the judgment; leaving it in place while a review is arranged does not itself mean the person is unlawfully deprived of liberty.
Official guidance and judgment
- UK Supreme Court case page and press summary: [2026] UKSC 16
- DHSC: changes to the definition of deprivation of liberty
- DHSC: Deprivation of Liberty Code of Practice
The Remote RM can support providers to review policies, trackers and governance processes against current official guidance. This is consultancy support, not a substitute for case-specific legal advice.