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Author and Publication
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Citation
Mental Capacity Act 2005, c. 9, sections 1 to 3. 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 valid consent under Article 5 after AGNI [2026] UKSC 16: what it means, why it differs from capacity, why it cannot be evidenced from records, what the Court of Protection is asking for under the understanding and response paragraph of its direction, and how the person's understanding and acceptance of their living arrangements should be gathered and written up so the court can rely on it.
AGNI [2026] UKSC 16 made valid consent the hinge of most deprivation of liberty questions. Under Article 5, a person who validly consents to their arrangements is not deprived of their liberty, and the Supreme Court held that valid consent rests on the person's actual understanding and acceptance rather than on capacity. For a deputy directed to evidence whether a person in care is deprived of their liberty before selling their home, that makes one paragraph of the direction, the account of the person's understanding of and response to their arrangements, the one the judge reads most closely. This guide explains what valid consent means, why it cannot be evidenced from the records, and how it should be gathered and written up.
Two limbs, and why the second one changed everything
Article 5 is engaged where a person is confined in a particular place for a not negligible period, has not validly consented to the confinement, and the confinement is attributable to the state. The first is the objective element, the second the subjective element, the third state attribution. Under Cheshire West the subjective element rarely did any work, because a person who lacked capacity to decide where to live was treated as unable to consent, and the objective element was met by the acid test. AGNI changed both. The objective element is now multifactorial. And valid consent, the Supreme Court held, is a distinct Article 5 concept that a person may satisfy even where they lack capacity under the Mental Capacity Act. Where valid consent is present there is no deprivation of liberty. That makes the subjective element the place where most property sale cases will now be decided.
What valid consent means after AGNI
Valid consent rests on the person's de facto understanding and acceptance of, or contentment with, their arrangements. It is not a capacity test. The question is not whether the person could weigh the information relevant to a residence decision, but whether, in fact, they understand in broad terms where they are and what the arrangements are, and whether they accept them. A person with advanced dementia who knows she is in a home, knows the door is kept locked, and says she is glad to be looked after and does not want to go anywhere else may well be giving valid consent. A person who repeatedly asks to go home, tries the door, and is distressed when redirected is not, whatever their capacity.
Why it cannot be evidenced from the records
Care records show what was done to and for the person. They rarely record what the person understands or how they respond, beyond a line that they were settled. Valid consent has to be evidenced from the person: what they say when asked about where they are, what they know about whether they can leave, how they respond when the subject of home comes up, and what is observed of their behaviour at the door, at the window and when visitors leave. That means a visit, time, and someone who knows how to ask without leading. Staff and family accounts are corroboration, not a substitute, because they describe the person from outside.
What the court's direction is really asking under paragraph (b)(iv)
The direction asks for an account of the person's understanding of and response to the arrangements for their residence and care. That is the valid consent evidence. The judge will look for the person's own words, quoted; for observed behaviour, described; for whether the account was gathered with the person alone; and for whether it is consistent with the restrictions and medication described elsewhere in the bundle. An account that reports contentment alongside a PRN record showing sedation for agitation three times a week will be read against itself. The evidence has to hang together.
Understanding: what the person knows
The evidence should address, in the person's own terms, whether they know where they live and that it is a care home rather than their own house; whether they know they cannot leave alone, or believe they can; whether they know why they are there; whether they know who decides about their care; and whether that understanding is stable or fluctuates. Fluctuation matters. A person who understands their arrangements in the morning and asks to go home every evening has a pattern the report should describe rather than average out.
Acceptance: how the person responds
Acceptance is shown by behaviour as much as by words. Does the person try the doors, and how often? Do they ask to go home, and to whom, and what happens then? Are they distressed at handover times, at night, when family leave? Do they take part in the life of the home or withdraw from it? Is any PRN medication being used in response to that behaviour? The report should set out what was observed at the visit and what the daily notes and incident records show over the preceding months, and should say plainly where the person's stated contentment and their observed behaviour diverge.
Where valid consent is absent
Where the person does not understand their arrangements, or understands them and objects, the subjective element is met and the analysis moves to the objective element and state attribution. The report should say so directly. The deputy's position in the COP24 will then be that the person is deprived of their liberty on the AGNI test, and the statement should propose what follows, which will usually be a request to the placement provider or local authority to consider authorisation. The property application does not fail because of that finding; it proceeds on its own evidence. What the court will not accept is a report that finds the person objects and then concludes they are not deprived of their liberty because the door is only locked at night.
How the evidence should be written up
Evidence first, opinion second, and the two kept apart. The evidence section records what the person said, quoted, and what was observed, dated and timed, with the source of every third-party account identified. The opinion section then states whether, on that evidence, the person is giving valid consent in the AGNI sense, and why. Where the evidence points both ways, the opinion should say which way it points on balance and what would change the view. A report that reaches its conclusion in the first paragraph and marshals the evidence behind it afterwards reads as advocacy, and judges notice.
Key takeaway
After AGNI, the question on which most property sale directions turn is whether the person validly consents to their arrangements, and valid consent is about what the person actually understands and accepts, not about capacity. It has to be evidenced from the person, at a visit, in their own words and observed behaviour, and set out so that it can be read against the restrictions and medication in the same bundle. Get that paragraph right and the rest of the direction follows; leave it thin and nothing else in the filing will carry it.
Frequently asked questions
How is valid consent different from capacity?
Capacity asks whether the person can understand, retain, use or weigh the relevant information and communicate a decision, under sections 2 and 3 of the Mental Capacity Act. Valid consent under Article 5, as the Supreme Court explained it in AGNI, asks whether the person in fact understands and accepts their arrangements. A person can lack the first and still give the second.
The person says they are happy. Is that enough?
It is evidence of acceptance, but not on its own. The court also wants to know what the person understands about their arrangements, whether their stated contentment matches their observed behaviour and the care records, and whether they would object if they understood more. A report that records the words and stops there has not answered the question.
Can the family give the account of the person's understanding?
Their account is relevant and should be recorded, but as what it is: a third-party view. Valid consent is about the person's own understanding and acceptance, and the court expects that to have been gathered from the person, alone, by someone independent.
What if the person's understanding comes and goes?
Describe the pattern rather than average it. Fluctuating understanding and intermittent objection are themselves evidence, and the opinion should say what they mean for valid consent on balance, and what a change in the pattern would do to that view.
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.
Need the person's understanding and response evidenced properly?
Nellie Supports produces an independent Deprivation of Liberty Report applying AGNI, from a visit to the person, with the valid consent analysis set out separately from the evidence it rests on. It is available on its own or bundled with a COP3 on capacity to sell and a draft COP24. Every report is peer reviewed before delivery. Call 0333 987 5118 or visit the property sale evidence service page.