GUIDES
After AGNI on 2 June 2026, deprivation of liberty requires a multifactorial Article 5 assessment. MCA capacity for residence or care remains a separate question; compliance alone is not consent, and safeguards remain necessary where Article 5 is engaged.
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Department for Constitutional Affairs (2007) Mental Capacity Act 2005: Code of Practice. London: The Stationery Office.
Copyright © 2026 Nellie Supports Ltd. All rights reserved.
This article is made available for general information, education and professional reference. It may be downloaded, printed and shared for non-commercial purposes, provided that it is reproduced in full, is not altered in any way, and is properly cited as the work of Nellie Supports Ltd. This material must not be edited, adapted, sold, republished, incorporated into commercial products, or used for commercial training, assessment, report-writing or advisory services without prior written permission from Nellie Supports Ltd.
This article does not constitute legal advice, clinical advice or a substitute for a decision-specific professional assessment. Where legislation, government guidance, court forms or external professional materials are referred to, those materials remain subject to their own copyright, licensing and re-use terms.
After AGNI on 2 June 2026, deprivation of liberty requires a multifactorial Article 5 assessment. MCA capacity for residence or care remains a separate question; compliance alone is not consent, and safeguards remain necessary where Article 5 is engaged. This guide covers the relevant evidence, support, process and limits in England and Wales.
After AGNI on 2 June 2026, deprivation of liberty requires a multifactorial Article 5 assessment. MCA capacity for residence or care remains a separate question; compliance alone is not consent, and safeguards remain necessary where Article 5 is engaged.
A residence or care assessment applies MCA sections 1–3 to that decision. Whether arrangements amount to deprivation of liberty is a distinct Article 5 question about objective confinement, valid consent and state responsibility. After AGNI, a person who lacks domestic-law capacity may nevertheless give valid Article 5 consent in the circumstances identified by the judgment. Do not infer it from compliance alone or where there is serious doubt.
AGNI requires assessment of the person’s concrete situation, including the type, duration, effects and manner of restrictions. Supervision and freedom to leave remain relevant factors, but there is no universal acid test. Consider the person’s actual understanding, wishes and objections. The MCA framework and the need for safeguards where Article 5 is engaged remain; the judgment did not automatically end every authorisation.
Capacity determines whether the person can make the particular residence or care decision with support. If they cannot, consider the appropriate best-interests process and lawful authority. This evidence may also inform Article 5 analysis, but neither a capacity finding nor apparent happiness alone answers the liberty question.
For residence or care capacity, identify the actual options, support and foreseeable consequences. For Article 5, establish the concrete restrictions, their effects and the person’s understanding, wishes and objections. Explain the question each item of evidence answers rather than use one generic assessment for both.
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.
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.
Existing DoLS authorisations and court orders did not all end automatically. Review the actual authorisation, order, restrictions and consent position. Government guidance says responsible bodies should review existing arrangements in light of AGNI rather than assume the old label or authorisation answers the present legal question.
Current official guidance continues to use DoLS for qualifying adults aged 18 and over in hospitals and care homes and court routes in other settings. Use the appropriate responsible body and procedure for the person’s age and circumstances. A private report is not a DoLS authorisation and Liberty Protection Safeguards should not be described as an operational replacement merely because legislation exists.
Keep supported MCA decision-making and Article 5 analysis distinct. Look at the actual arrangements and the person’s wishes, investigate consent carefully and use the appropriate safeguards where liberty may be deprived. Seek review where the position is uncertain.
Identify whether the question concerns capacity, best interests, deprivation of liberty or more than one of these. Formal DoLS assessments and court evidence have their own requirements; an independent commercial report is not automatically the correct or sufficient route.
No. A diagnosis does not establish lack of capacity. For a decision under the Mental Capacity Act, consider the relevant information and practicable support, then assess understanding, retention, use or weighing and communication by any means. Any inability must be caused by an impairment of, or disturbance in the functioning of, the mind or brain. Will-making has its own legal test.
No. AGNI replaced reliance on the Cheshire West acid test with a multifactorial approach. Supervision and freedom to leave remain relevant but are not alone determinative. Consult the judgment and current government guidance, updated 22 September 2026, and do not assume lack of objection means valid consent.
The related guides below provide further explanation of the decisions, evidence and legal processes discussed here.
If restrictions or consent are uncertain, raise the concern with the responsible care provider and local authority or the solicitor handling the court route. Do not end an authorisation or assume safeguards are unnecessary solely because the person appears settled. Current guidance: https://www.gov.uk/government/publications/changes-to-the-definition-of-deprivation-of-liberty/uk-supreme-court-2026-judgment-on-what-constitutes-a-deprivation-of-liberty
Mental Capacity Act Code of Practice
Supreme Court: Attorney General for Northern Ireland reference, June 2026
Government guidance: June 2026 deprivation-of-liberty judgment
A GOOD PLACE TO START
Tell us what is happening and what you need help with. We will listen, explain the options and help you find the right starting point.