The Supreme Court’s AGNI judgment (A Reference by the Attorney General for Northern Ireland), is the biggest change to deprivation of liberty law in more than a decade. As providers adapt to a new, more nuanced legal test, Anna Fee, Senior Associate in RWK Goodman’s Health & Social Care team, outlines the practical implications for care services and the steps organisations should be taking now to remain compliant and protect the people they support.
The Supreme Court’s AGNI judgment, handed down in June 2026, marks the most significant shift in deprivation of liberty law since Cheshire West. While the legal test has changed, what matters most for providers is understanding what this means in day‑to‑day practice: how to recognise borderline cases, how to record consent, and how to keep people safe in line with DHSC interim guidance.
What has changed in practical terms?
Cheshire West gave providers a simple but blunt, “acid test”: continuous supervision and control, and not free to leave. AGNI moves away from that simplicity. The Court has reintroduced a multifactorial assessment, meaning providers must now consider the nature, degree, duration and impact of restrictions, as well as whether the person objects and whether arrangements feel relatively normal for the individual.
AGNI also places emphasis on the concept of valid consent. This is not the same as having capacity under the Mental Capacity Act. Instead, it asks whether the person shows a basic awareness of their circumstances and communicates that acceptance — verbally, non‑verbally or behaviourally. Their agreement may mean that they are not deprived of their liberty.
For providers, this creates both flexibility and uncertainty. The challenge now is applying these principles consistently and safely.
Recognising Borderline Cases
AGNI makes clear that passive acceptance is not consent. Providers should be cautious where:
- a person appears settled but cannot explain why
- behaviour fluctuates
- there is a history of objection
- family members express concern
- restrictions have increased over time
What Providers Should Do Now
Providers should review the DHSC’s interim guidance (dated 15 June 2026) to understand what constitutes a deprivation of liberty.
To ensure that care arrangements remain lawful, proportionate and well‑evidenced, providers should do the following:
1. Review existing DoLS authorisations
Check whether restrictions remain necessary and proportionate. Record whether the person appears content, unsettled or actively objects. Where the person is no longer deprived of their liberty but has a DoLS authorisation in place, their cases should be reviewed as soon as practicable by the local authority. However, leaving the authorisation in place in the meantime does not mean the person is being unlawfully deprived of their liberty.
2. Apply the multifactorial approach to new cases
Look beyond supervision and freedom to leave. Consider the whole picture including the impact, duration, purpose and how typical the arrangements are for someone with similar needs.
3. Strengthen documentation
Clear records of wishes, feelings, presentation and interactions will be essential. Note any signs of acceptance or objection, however subtle.
4. Support access to advocacy
Advocacy remains a key safeguard, particularly where consent is unclear or contested.
5. Prepare staff teams
Frontline staff will often be the first to notice changes in behaviour or presentation. Brief them on:
- what valid consent looks like
- how to record observations
- when to escalate concerns
7. Communicate with families
Families may have questions about what AGNI means. Reassure them that the principles of the MCA still apply and that decisions continue to be made in the person’s best interests.
A measured approach while awaiting further guidance
AGNI offers greater nuance but also places a heavier burden on providers to show why arrangements are lawful. The safest course is a steady, well‑documented approach: continue established MCA processes, incorporate the new AGNI principles, and ensure that every decision is supported by clear reasoning and contemporaneous records.
RWK Goodman’s Health & Social Care team works closely with providers across the sector and will continue to monitor developments as further guidance emerges.
Anna Fee, Senior Associate in RWK Goodman’s Health & Social Care team