Author and Publication
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Citation
Mental Capacity Act 2005, c. 9. Available at: https://www.legislation.gov.uk/ukpga/2005/9/contents
Copywright
Copywright © 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.
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Abstract
This guide explains A Reference by the Attorney General for Northern Ireland [2026] UKSC 16, known as AGNI, which overruled Cheshire West and changed the test for deprivation of liberty. It sets out the new multifactorial test, the special meaning of valid consent, why DoLS authorisations are expected to become rare, and why the Court of Protection now directs deputies to evidence whether the person is deprived of their liberty before it will authorise the sale of their property.
On 2 June 2026 the Supreme Court handed down A Reference by the Attorney General for Northern Ireland [2026] UKSC 16, known to practitioners as AGNI. It overruled Cheshire West, replaced the acid test with a multifactorial assessment, and gave valid consent a meaning under Article 5 that a person can satisfy even where they lack capacity in domestic law. For deputies and attorneys selling the home of a person in care, the practical effect arrived within weeks: DoLS authorisations that once did the evidential work by implication are drying up, and the Court of Protection is directing applicants to state, and evidence, whether the person is deprived of their liberty before it will authorise the sale. This guide explains the ruling in plain terms and what the court now expects to see.
What the Supreme Court decided in AGNI
AGNI departed from P v Cheshire West and Chester Council [2014] UKSC 19 under the 1966 Practice Statement. Cheshire West had held that a person who lacked capacity to consent to their arrangements was deprived of their liberty whenever they were under continuous supervision and control and not free to leave, whatever the comfort or purpose of the placement. AGNI holds that those two factors are no longer sufficient on their own. Whether a person is deprived of their liberty under Article 5 now requires a multifactorial 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.
Valid consent: the part that changes most in practice
The second limb of the judgment is the one practitioners find hardest. Under Article 5, a deprivation of liberty requires that the person has not validly consented. AGNI holds that valid consent for this purpose is not the same as capacity under the Mental Capacity Act 2005. It rests on the person's de facto understanding and acceptance of, or contentment with, their arrangements. A person who lacks capacity to decide where to live may nonetheless validly consent to living there in the Article 5 sense. Where valid consent is present, there is no deprivation of liberty, however restrictive the setting. That is why the person's own understanding and response to their arrangements has become the centre of the evidence rather than a supporting detail.
Why a liberty ruling reached property sales so quickly
Before AGNI, a deputy applying to sell the former home of a person in a care home would usually exhibit the DoLS standard authorisation to the application. The authorisation was treated as showing that the person needed to be where they were and would not be returning. After AGNI, the Property and Affairs Court User Group confirmed on 1 July 2026 that existing authorisations remain valid but that far fewer will be sought, and that where there is no authorisation a deputy seeking to sell can file a COP24 addressing the Article 5 factors. Judges then began directing exactly that. Orders received in September 2026 require the applicant to file, within 28 days, a COP24 stating whether a standard authorisation exists, giving a narrative account of the living arrangements, and setting out the applicant's position on whether the person is deprived of their liberty within the meaning of AGNI. The court is asking this without being invited to.
What the court's direction actually asks for
The directions seen so far follow a consistent pattern. The COP24 must state whether a standard authorisation is in place and attach it if so. It must describe the home setting. It must itemise the restrictions in place, and the orders specifically call out physical restraint and CCTV monitoring. It must account for medication, including how often and in what circumstances PRN medication has been given over the previous six months. It must give an account of the person's understanding of and response to the arrangements for their residence and care. And it must state the applicant's position on whether the person is or is not deprived of their liberty within the meaning set out in AGNI. Each of these is a paragraph the judge will check has been answered. A bare statement that the person is settled and not deprived of their liberty does not answer any of them.
Why a DoLS authorisation no longer answers the question
A DoLS authorisation records that a supervisory body was satisfied, on the Cheshire West test, that the arrangements amounted to a deprivation of liberty and were in the person's best interests. It says nothing about the multifactorial test, nothing about valid consent in the AGNI sense, and nothing about the person's property. Where an authorisation still exists the court will want to see it, but it will still want the narrative account and the applicant's position under the new test. Where no authorisation exists, which will increasingly be the position, there is nothing to exhibit and the evidence has to be produced afresh. Relying on a care home letter or on the deputy's own impression is the route most likely to produce a further direction and a delayed sale.
Two questions that must not be blended
AGNI has not changed the rule that capacity is decision-specific. Whether the person is deprived of their liberty is an Article 5 question about their living arrangements. Whether the person has capacity to decide to sell their property is a Mental Capacity Act question about a specific transaction, assessed under sections 2 and 3 with the relevant information for that decision. The court may direct evidence on both, as it did in the September 2026 orders, but they are answered by different evidence. A deprivation of liberty report is not a capacity assessment, and a COP3 on capacity to sell says nothing about liberty. Where both are needed, they can be completed at the same visit, but each must stand on its own.
What good Article 5 evidence looks like after AGNI
It starts with a visit. The restrictions have to be observed and itemised rather than summarised: doors, supervision, monitoring, restraint, going out, visits. The care and medication records have to be read, with PRN use over six months set out and its circumstances explained. The person has to be seen, at their own pace, and their understanding of and response to their arrangements recorded in their own words and observed behaviour, because that is what valid consent turns on. The staff who support the person have to be asked what happens in practice. Then the evidence is set out first and the opinion second: whether the objective element is met on the multifactorial test, whether the subjective element is met or displaced by valid consent, and whether the arrangements are attributable to the state. A schedule mapping each paragraph of the court's direction to the place it is answered lets the judge see the direction has been met.
Where practitioners are being caught out
The recurring errors are habits from the Cheshire West years. Asserting in the application that the person is not deprived of their liberty and expecting that to be accepted. Exhibiting an old standard authorisation as if it answered the new test. Filing a short wishes and feelings statement that records the person is happy without addressing restrictions, medication, understanding or consent. Treating a capacity assessment for the placement or for the sale as if it evidenced liberty. And starting the 28-day clock late, because the direction arrived with the order appointing the deputy and nobody was expecting it. Each of these produces a further direction, and every further direction delays completion.
Key takeaway
AGNI replaced the acid test with a multifactorial assessment and gave valid consent a meaning a person can satisfy without capacity. The Court of Protection has responded by directing deputies to evidence, paragraph by paragraph, whether the person whose home is to be sold is deprived of their liberty. That evidence now has to be produced from a visit, the records and the person's own account, and set out with reasons. Treat the direction as a checklist rather than a formality, keep the liberty question separate from the capacity question, and the sale proceeds on evidence rather than assumption.
Frequently asked questions
Does AGNI mean nobody in a care home is deprived of their liberty any more?
No. It means the question has to be answered case by case on the multifactorial test rather than by applying the acid test. Many people in residential care will not be deprived of their liberty under AGNI, particularly where they understand and accept their arrangements. Some will be, particularly where restraint, sedation, locked doors or objection are present. The point of the court's direction is that it will not assume either answer.
What is valid consent under AGNI?
Consent for Article 5 purposes, which the Supreme Court held rests on the person's actual understanding and acceptance of their arrangements rather than on capacity under the Mental Capacity Act. A person can lack capacity to decide where to live and still validly consent, in this sense, to living there. Where valid consent is present there is no deprivation of liberty. It is evidenced from the person's own words and observed response, not from a diagnosis or a capacity finding.
The court has directed a COP24 on deprivation of liberty. Who writes it?
The COP24 is the applicant's statement, made in the deputy's or attorney's name, and it sets out the applicant's position. What it exhibits is a matter of evidence. An independent deprivation of liberty report from an assessor who has visited the person, read the records and applied the AGNI test gives the deputy a reasoned basis for the position the statement takes, and lets the solicitor draft the statement by reference to the exhibit rather than from scratch.
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.
Directed to file Article 5 evidence on a property sale?
Nellie Supports produces an independent Deprivation of Liberty Report applying AGNI, written to be exhibited to the deputy's COP24, on its own or bundled with a COP3 on the person's capacity to sell the property and a draft COP24. Every report is peer reviewed before delivery. Call 0333 987 5118 or visit the property sale evidence service page.