GUIDES
Risk, residence capacity and deprivation of liberty require separate analysis. Since June 2026, AGNI requires a multifactorial Article 5 assessment and careful consideration of valid consent.
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
LBX v K, L and M [2013] EWHC 3230 (Fam).
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Risk, residence capacity and deprivation of liberty require separate analysis. Since June 2026, AGNI requires a multifactorial Article 5 assessment and careful consideration of valid consent. The sections below explain the evidence, practical steps and limits of the assessment or process.
The UK Supreme Court’s AGNI judgment in June 2026 changed the approach to identifying a deprivation of liberty. Capacity to decide residence, valid consent, objective confinement and state responsibility are related but separate questions. Restrictions or disagreement do not by themselves answer every part of Article 5.
Risk should be identified carefully because it may form part of what the person needs to weigh. However, risk does not automatically prove lack of capacity. In this area, common concerns include conflating residence with care, treating compliance as consent, ignoring restrictions, overlooking coercion, or relying only on whether the person appears settled.
In residence decisions, risk enters the analysis principally as content: the risks of each option are part of the relevant information the person must be able to understand and weigh. A person deciding to remain at home should be able to hold their own evidenced risks in mind, falls, medication, self-neglect, and set them against what home means to them. The assessment tests whether that weighing is possible, not whether the person reaches the conclusion the professionals around them would prefer.
A risky preference is not itself incapacity. Consider the person’s understanding, retention, use or weighing and communication with practicable support, then any impairment and causal link. The person may give different weight to risks and to remaining at home. Record the actual abilities rather than treating acceptance of risk as either conclusive proof of capacity or proof of its absence.
AGNI requires a multifactorial assessment of objective confinement rather than applying the former Cheshire West “acid test” as the complete current rule. Valid consent requires close attention; where there is serious doubt, the safeguards identified in the judgment and government guidance must be applied. Compliance, supervision or living in a care setting alone does not settle the question.
Following AGNI [2026] UKSC 16, the objective question requires a multifactorial assessment of the person’s concrete circumstances, including the type, duration, effects and implementation of restrictions. Continuous supervision and control and inability to leave remain relevant but are not a sufficient acid test. Consider valid consent and state responsibility separately; lack of Mental Capacity Act capacity does not automatically establish lack of valid consent under Article 5.
Where Article 5 is engaged, identify the applicable legal route and safeguards. DoLS continues for eligible adults in hospitals and care homes; court authorisation is the route for other settings where applicable. Administrative arrangements differ between England and Wales, including the supervisory body for hospitals. Obtain advice on the actual setting, age, restrictions and legal framework rather than assuming that every restrictive placement uses one route.
The circumstances of the assessment deserve honesty in the report. A person assessed inside a locked unit, told or believing they cannot leave, may present very differently from the same person at home, and the setting can suppress exactly the engagement the assessment seeks. The assessor should record where and under what conditions the person was seen, take practicable steps to soften the setting's effect and consider whether reassessment elsewhere, or once the acute situation settles, would produce fairer evidence.
The judgment did not automatically cancel every existing authorisation or court order. Review the actual authority, its conditions and expiry, and obtain advice where the current arrangements may no longer satisfy the law. Capacity and best-interests decisions about residence remain decision-specific.
Risk is information to consider, not proof of incapacity. Assess the person’s ability to make the residence decision with appropriate support. Separately examine restrictions under the current deprivation-of-liberty framework and establish what legal authority is needed. The report should keep those questions distinct.
No. A diagnosis alone does not establish incapacity. For a Mental Capacity Act decision, provide practicable support, examine understanding, retention, use or weighing and communication, then explain whether any inability is caused by an impairment or disturbance of mind or brain. The conclusion is specific to the decision and time.
The risk evidence itself, presented honestly: what has happened at home, what support could reduce it and what each option restricts. The capacity assessment then tests whether the person can weigh that risk information, which is different from whether professionals like their answer.
A reasoned assessment may be needed where capacity is genuinely in doubt and a move, care arrangement or disputed restriction must be decided. Check the separate current Article 5 position and available safeguards promptly. Refusal, risk or apparent contentment alone does not answer either question.
The related pages below explain connected decisions, evidence requirements and legal processes.
Before seeking a report, write down the exact decision, relevant date, reason for concern and intended use. Gather the documents that explain the real options and any communication needs. Check any required form or court direction, agree the scope and total fee, and clarify how missing evidence or further questions will be handled.
Supreme Court: Attorney General for Northern Ireland reference, June 2026
GOV.UK: Supreme Court 2026 judgment on what constitutes a deprivation of liberty
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