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Author and Publication
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Citation
LBX v K, L and M [2013] EWHC 3230 (Fam).
Copywright
Copywright © 2026 Nellie Supports Ltd. All rights reserved.
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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 is relevant, but it is not the same as incapacity
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.
Risk as part of what the person must weigh
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.
Accepted risk is not incapacity
A person who understands the risks of their choice and accepts them is exercising capacity, however anxious that makes everyone else. The Act protects unwise decisions precisely because the alternative is a world where disagreement with professionals becomes evidence of impairment. The line the assessment must draw runs between a person who has weighed the risk and chosen, and a person whose impairment prevents the risk from being held, used or weighed at all, and only the second belongs in a finding of incapacity.
The current AGNI approach
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.
When arrangements amount to a deprivation of liberty
Following the Supreme Court's decision in Cheshire West, arrangements amount to a deprivation of liberty where the person lacks capacity to consent to them, is under continuous supervision and control and is not free to leave, regardless of how comfortable the setting or benign the purpose. Many care home placements, and some intensive arrangements at home, meet that description, and recognising it matters because a deprivation of liberty requires lawful authorisation, not merely good intentions.
Authorisation and the place of the capacity assessment
Deprivations of liberty in care homes and hospitals are authorised through the statutory scheme operated by local authorities, and arrangements elsewhere, including in the person's own home, require authorisation by the Court of Protection. In each route, evidence about the person's capacity to consent to the arrangements is foundational, and a decision-specific assessment addressing the actual arrangements, rather than residence in general, is what the authorisation process needs and what challenges to it examine first.
Restrictions within the assessment itself
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.
Existing authorisations and orders
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.
Key takeaway
Risk in residence decisions is content to be weighed, not a verdict to be imported, and restriction is a question of lawfulness, not convenience. Test whether the person can weigh their own risks, respect the capacitous choice that accepts them, and where incapacity and restriction meet, ensure the arrangements are authorised and the evidence addresses them directly, because liberty is the interest at stake and it deserves evidence of matching quality.
Frequently asked questions
Does a diagnosis automatically mean someone lacks capacity?
No. A diagnosis may explain why capacity is in doubt, but it does not answer 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 evidence is useful for Capacity for Residence?
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.
When is a formal assessment for Capacity for Residence useful?
Formal assessment is essential where risk is being used to justify a move the person resists, where the proposed arrangement may amount to a deprivation of liberty, or where the family and professionals disagree about what the person can decide.
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.
Risk driving a residence decision?
Nellie Supports completes residence and care capacity assessments across England and Wales, with a same working day response to every enquiry and every report peer reviewed before delivery. Call 0333 987 5118 or visit the residence capacity assessment service page.