GUIDES
Valid consent under Article 5 is distinct from Mental Capacity Act capacity. After AGNI, evidence must address the person’s actual awareness and wishes; compliance alone is insufficient.
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Mental Capacity Act 2005, c. 9, sections 1 to 3. Available at: https://www.legislation.gov.uk/ukpga/2005/9/contents
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Valid consent under Article 5 is distinct from Mental Capacity Act capacity. After AGNI, evidence must address the person’s actual awareness and wishes; compliance alone is insufficient. The guide explains how direct communication, behaviour, records and third-party accounts contribute to a reasoned opinion, including uncertainty and safeguarding steps.
AGNI [2026] UKSC 16 distinguishes Article 5 valid consent from capacity under the Mental Capacity Act. Begin with a multifactorial assessment of the actual restrictions, then consider absence of valid consent and state responsibility. The person’s awareness, wishes and behaviour matter, but compliance alone does not prove consent. Where the court requests this evidence in a property application, follow the actual direction; no single paragraph or type of paid report determines every case.
Article 5 deprivation of liberty has three elements: objective confinement for a material period, absence of valid consent and responsibility attributable to the state. AGNI changed the former Cheshire West approach to the objective and subjective questions. They remain separate: a person’s arrangements must be considered as a whole, and no element should be assumed merely from a diagnosis, lack of Mental Capacity Act capacity or residence in a care home.
Valid consent concerns actual awareness and experience of the arrangements. The person may have sufficient basic understanding to communicate acceptance or objection even if they lack Mental Capacity Act capacity for a residence or care decision. Examine the individual circumstances and communication support. Neither a brief “I’m happy” nor absence of attempts to leave is conclusive, especially where medication, fear or inability to object may affect expression. If there is serious doubt, valid consent must not be inferred.
Support the person to communicate directly wherever possible, using suitable timing, language, aids and, where needed, repeated contact. Review care, medical and incident records and speak with staff and people who know them. These sources may reveal past or intermittent objections, effects of medication and changes that a single visit misses. Record the source and date of each account. Records can be important evidence; do not dismiss them as incapable of contributing to the question.
If the court directs an account of understanding and response, explain what was asked, the support provided, the person’s words or other communication and observed behaviour. Distinguish direct evidence from staff or family accounts. Explain any material inconsistency, such as reported contentment alongside distressed behaviour or sedating medication. Check the wording of the actual order rather than assuming a standard paragraph number or evidential format.
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 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.
Absence of valid consent alone does not establish all of Article 5: objective confinement and state responsibility must also be examined. If the evidence suggests a deprivation of liberty, raise the appropriate authorisation and safeguards promptly with the provider, supervisory body or court. Do not assume a particular outcome in a property application; the judge decides what further evidence or orders are required.
Separate dated observations and identified sources from the professional analysis. Explain the person’s apparent awareness and wishes, support offered, restrictive practices and any conflicting evidence. If there is serious doubt about valid consent, say so and identify the required further enquiries or safeguards rather than resolving it by a bare balance-of-probabilities statement. Record review needs where understanding or objection fluctuates.
Consider the actual restrictions, the person’s awareness and wishes, and state responsibility separately. Support communication, use the relevant records and accounts, and explain uncertainty. Compliance is not consent, and serious doubt cannot be answered by assuming acceptance. Follow the safeguards and court directions appropriate to the case.
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.
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.
Family and staff accounts may provide valuable evidence, particularly about changes and objections outside a visit. Identify them as third-party accounts and consider them with the person’s supported communication and relevant records. If understanding or objection fluctuates, describe the pattern and seek the appropriate review or authorisation where doubt remains. There is no universal requirement that an external professional interview the person alone before any evidence can be considered.
The related pages below explain connected decisions, evidence requirements and legal processes.
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