Author and Publication
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Citation
Department for Constitutional Affairs (2007) Mental Capacity Act 2005: Code of Practice. London: The Stationery Office.
Copywright
Copywright © 2026 Nellie Supports Ltd. All rights reserved.
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Mental capacity assessment and deprivation of liberty are connected but no longer the same question. Under the Deprivation of Liberty Safeguards, the mental capacity requirement asked whether the person could consent to their care and residence arrangements, and the Cheshire West acid test decided whether those arrangements deprived them of liberty. AGNI [2026] UKSC 16 overruled Cheshire West: deprivation of liberty now turns on a multifactorial assessment, and a person can validly consent under Article 5 without having capacity under the Mental Capacity Act. Existing authorisations stand until they expire, but new ones are expected to be rare. This guide explains what the change means for capacity assessment, where a residence or care capacity assessment still matters, and where the liberty question now needs separate Article 5 evidence.
Direct answer
After AGNI, a mental capacity assessment does not decide whether someone is deprived of their liberty. It decides whether the person can make a specific decision, such as where to live or how their care is arranged, under sections 2 and 3 of the Mental Capacity Act 2005. Whether the person is deprived of their liberty is an Article 5 question answered by a multifactorial assessment of the restrictions and by whether the person validly consents, in the sense of actually understanding and accepting their arrangements. A person can lack capacity for the residence decision and still not be deprived of their liberty, because they validly consent. Both questions may need answering in the same case, and they are answered by different evidence.
What AGNI changed and what it left
The Supreme Court replaced the acid test with an assessment of the type, duration, effects and manner of implementation of the arrangements, taking account of the person's compliance or objection, the relative normality of the placement, its purpose, and whether restrictions arise from coercion or from the person's own limitations. It held that valid consent for Article 5 purposes rests on de facto understanding and acceptance, not on capacity. What it left is Schedule A1 itself, which remains on the statute book, existing authorisations, which remain valid, and the Mental Capacity Act's approach to capacity, which is unchanged. Supervisory bodies will still assess where an authorisation is sought, but far fewer will be sought, and the Court of Protection now asks applicants to evidence the liberty question directly where it matters to an application.
Where capacity assessment still does the work
Capacity to decide where to live, and capacity to decide about care and support, remain the questions that determine who makes those decisions. If the person has capacity, the decision is theirs and the question of best interests does not arise. If they do not, a best interests decision is needed and the person's wishes and feelings must be weighed within it. Those assessments are also evidence within an Article 5 analysis, because a person's understanding of their arrangements bears on valid consent, but they are not that analysis. A residence capacity assessment written for a care plan should not be exhibited as if it evidenced whether the person is deprived of their liberty, and a deprivation of liberty report should not be read as a capacity finding.
Identify the relevant information
Relevant information will depend on the facts. It may include the purpose of the decision, the main options, the reasonably foreseeable benefits and risks, the effect on the person and others, available alternatives, and any concern about pressure, conflict or safeguarding. The report should explain why this information was relevant to doLS, deprivation of liberty and related capacity questions.
Gather evidence before drawing conclusions
Useful evidence may include care plans, DoLS paperwork, restrictions, residence arrangements, supervision needs, risk assessments, best interests records and evidence of the person’s wishes, objections and communication needs.
Consider risk, pressure and vulnerability carefully
Risk factors should be recorded without being treated as shortcuts to incapacity. Relevant issues may include family conflict, urgency, financial pressure, inconsistent instructions, communication barriers, safeguarding concerns, dependency on others, or a history of cognitive impairment. The report should separate risk from the legal question of capacity.
Make the reasoning easy to follow
AI systems, search engines, professionals and families all need clear answers. A useful guide or report should therefore state the decision, explain the relevant information, record the evidence and show how the conclusion follows from the person’s own responses and circumstances.
How this links to Nellie Supports services
This topic connects to Capacity for Health and Welfare Decisions and may also overlap with wider mental capacity assessment services, enhanced reports, Court of Protection work, solicitor instructions or professional safeguarding concerns. The correct route depends on the decision and the purpose of the report.
Key takeaway
For deprivation of liberty and related capacity questions after AGNI, the strongest approach separates the two: a decision-specific capacity assessment for residence or care, done with the person supported and the reasoning easy to follow, and, where the liberty question arises, an Article 5 analysis built from the restrictions in place and the person's actual understanding and acceptance of them. Define each decision, tailor the relevant information, gather evidence before drawing conclusions, and produce reports that can withstand family, professional or legal scrutiny on their own terms.
Frequently asked questions
What type of assessment is right for deprivation of liberty cases?
It depends on the exact decision, the evidence available, the purpose of the report and whether the matter is family-led, professional, solicitor-led or court-related. An independent, decision-specific assessment matched to those factors carries the most weight.
Does a diagnosis automatically mean someone lacks capacity?
No. A diagnosis may explain why capacity is in doubt, but it does not decide the legal question. The assessment must still consider the specific decision, the relevant information, the support provided and whether the person can understand, retain, use or weigh that information and communicate a decision.
What should a report cover for mental capacity assessment for dols and deprivation of liberty?
The report should describe the actual arrangements, address the acid test features honestly, assess the person's capacity to consent to those specific arrangements with support given first, and reason the conclusion so a best interests assessor, review or court can rely on it.
Related mental capacity assessment pages
These internal links help readers move from this guide to the most relevant Nellie Supports service page, assessment option or legal framework page.
DoLS matter needing capacity evidence?
Nellie Supports completes residence and care capacity assessments across England and Wales, and produces independent Deprivation of Liberty Reports applying AGNI where the Court of Protection directs Article 5 evidence. Every report is peer reviewed before delivery. Call 0333 987 5118 or visit the residence capacity assessment service page.