Sandra McDonald
Chair Emeritus
(As with any of my articles I have tried to explain this complicated case in plain English and in doing so have simplified complex legal narrative. You are advised to read the formal judgement if you need the detail).
In June 2026 the Supreme Court published its judgement in the case referred to it by the Attorney General for Northern Ireland,
A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 - hereafter referred to, for ease, as AGNI
Background
AGNI concerned the question of what counts as a “deprivation of liberty” (DoL) under article 5(1) of the European Convention on Human Rights (“the European Convention”) for adults who do not have mental capacity to make their own decision about their residence and care arrangements and, who are living in community care settings which amount, or potentially amount, to confinement. So far this feels like Cheshire West. An oft quoted and seminal case to practitioners in the adult capacity arena.
Specifically, AGNI raised the question of whether such an adult can “validly consent” to their confinement, even if they do not have full mental capacity to make a decision about their living arrangements. Here we begin to divert from Chesire West.
To determine if there is a DoL there is both an objective and a subjective ‘test’, both of which must be satisfied/present for a DoL to exist.
To date, the subjective test has been an absence of valid consent by the individual to their confinement, due to the lack of the necessary mental capacity to offer this.
Cheshire West ‘crystalised’ the objective test. In that case, by a majority, the Supreme Court held that the “acid test” for a deprivation of liberty is whether an individual is subject to “continuous supervision and control” and “not free to leave.”
This ‘Cheshire West definition’ of the objective test has been the benchmark since the 2014 ruling in Chesire West. Albeit in Scotland the Government has never offered guidance on the meaning of these elements in practice.
The AGNI case asked whether a person who lacks mental capacity to make decisions about their residence and care arrangements, can nevertheless give valid consent to those arrangements through the expression of current wishes and feelings, where these go beyond mere acquiescence to their confinement. Thus, challenging the subjective test to date of the person needing to have mental capacity to consent.
The easiest way to think about it is in terms of consent, assent and compliance.
Consent – being the active giving of permission
Assent – typically seen in a behaviour indicating agreement or concurrence
Compliance – being a yielding, an act of obeying
Cheshire West required consent. The confined person was required to have full mental capacity, thus an ability to offer a formal valid consent to their confinement, absence of which created a DoL. ‘Mere’ assent was not sufficient. AGNI is now asking if assent is in fact sufficient.
Judgement
In short, the seven judges considering this question concluded that assent was sufficient to offer a valid consent to what would otherwise amount to a DoL.
They commented that “valid consent” is concerned with a person’s understanding of their situation and how they experience it. A person may not have mental capacity to make decisions about their care and residence arrangements, but if they have a basic level of awareness and consciousness of their living arrangements that is sufficient to enable them to know and communicate whether they are happy or unhappy with them, they may be treated as able to give or withhold “valid consent” to confinement by an expression of their wishes and feelings.
The judges did comment however that the process of assessing whether there has been a deprivation of liberty is not always easy and will be particularly difficult in borderline or marginal cases. Equally, it may sometimes be difficult to ascertain the true feelings or preferences of vulnerable individuals who do not have mental capacity to decide on their living arrangements. Where there is serious doubt, no inference of valid consent should be drawn.
In reaching their conclusion the judges scrutinised the meaning of Article 5 of the
European Convention. Their view was that Article 5 is concerned with the physical liberty of the person; it is not concerned only with restrictions on liberty of movement.
They commented that there is an overlap between the objective and subjective elements of a deprivation of liberty. The assessment of the objective element can take account of the specific context and circumstances.
Their view was that the starting point in assessing whether someone has been deprived of their liberty is the specific situation of the individual concerned. They felt the matter is one of degree or intensity, not one of nature or substance. The Cheshire West definition, of continuous supervision control and not free to leave, is one of nature and substance.
They commented that there should be a multifactorial assessment which takes account of a range of factors including the type, duration, effects and manner of implementation of the measure in question, as well too as the purpose of the measure in the given situation. No single factor is determinative.
In concluding thus, they have not only revised the subjective test in Cheshire West (lowering the required authority from consent to assent) but have also effectively ‘set aside’ the objective test. The judges stated explicitly that in their view it was “appropriate to depart from Cheshire West”. So we enter an entirely new era on defining DoL.
Schools of thought
Already there are two schools of thought emerging on whether AGNI has offered positive progress.
One school who feels that being able to accept a person’s assent to confinement will mean less people will need to be subject to court ordered authorisation – an infringement itself on the person’s right of freedom.
The other school who feels that a person’s compliance will be taken as assent and so more people will be deprived of their liberty without lawful authority.
Time will tell – watch this space
Questions?
We had plenty of unanswered questions following Cheshire West, despite more than a decade of time passed; for me, rather than clarifying matters AGNI has created even more questions and uncertainty.
The Dementia Trust will be hosting a series of Power of Attorney breakfast Q&A and networking events in January 2027, bringing together legal professionals and others with an interest in planning ahead, capacity and protecting people's rights.
There will be opportunities to share experiences, ask questions and explore some of the challenges Sandra raises in this article.
Look out for your invitation. We'd love you to join the conversation
