19 August 2026
By Peter Tsoukkas, Research Officer, Essex Autonomy Project, University of Essex, autonomy@essex.ac.uk
On 2 June 2026, the UK Supreme Court handed down its judgment in A Reference by the Attorney General for Northern Ireland (AGNI) [2026] UKSC 16. The judgment made two significant changes to the test for deprivation of liberty in care settings. First, it replaced the Cheshire West “acid test” with a multifactorial assessment of confinement; this is known as ‘the objective limb’ of the test for deprivation of liberty.
Second, it recognised a new form of valid consent, available even to a person who lacks the capacity to make the decision in question. This is the so-called ‘subjective limb’ of the test. Both changes carry immediate and far-reaching implications for health and social care practitioners who must ensure protection for the liberty rights of people who draw on care and support across the UK.
I recently provided research and technical support for the National Mental Capacity Forum (NMCF) and the Essex Autonomy Project (EAP) to deliver two NMCF webinars addressing the AGNI judgment. NMCF is a joint initiative of the Ministry of Justice and the Department of Health and Social Care. It plays an important role in raising awareness of the Mental Capacity Act and in providing opportunities for continuing education and discussion among those who apply the Act in practice.
Interest in the two NMCF AGNI webinars was high, with 988 registrations for the pre-judgment webinar (25 March, 2026) and 981 registrations for the ‘Rapid Response’ webinar that was held shortly after the judgment was handed down (24 June, 2026).
We were grateful that many registrants took time to respond to our optional registration questions. Their responses helped me understand how frontline health and social care professionals see the challenges arising from AGNI. The snapshot provided by this NMCF registration data can and should inform the development of post-AGNI guidance and training. The response from the workforce also suggests that, in at least one important respect, the frontline health and social care workforce was already a step ahead of AGNI.
The risks
The NMCF registration data show a workforce with serious concerns about the AGNI judgment. Before the ruling, NMCF affiliates identified one of the biggest challenges pertaining to the subjective limb: how do you tell the difference between a person genuinely consenting and a person who is merely going along with something they have little power to resist?
Webinar registrants, who were predominantly health and social care professionals who play a role in applying the Deprivation of Liberty Safeguards as part of their professional duties, distinguished assent from acquiescence, describing acquiescence as closer to learned helplessness (agreement given out of fear, institutionalisation, or a lack of power to say no), warning of the danger of mistaking acquiescence for consent. 58% of 914 respondents agreed that consent can sometimes be validly inferred from behaviour or demeanour, but 65% of 903 respondents warned of the risks in relying on merely tacit or passive consent in the absence of decision-making capacity.
After the ruling, the most dominant concern from frontline professionals pertained to the objective limb, and to the risk of losing independent oversight of care arrangements for vulnerable persons who may not expressly manifest their objections. This was the most commonly mentioned concern among 533 respondents. NMCF affiliates felt that self-funders and people without family or friends to advocate for them may be particularly exposed to this risk.
A further source of confusion was the comparison to detention in a prison cell. The multifactorial assessment calls for assessors to consider how far-removed care settings are from the situation of detention in a prison cell. Practitioners noted that some care settings may not resemble a prison cell but are in fact more restrictive than one. They expressed uncertainty about how to weigh this against the other seven factors in a multifactorial assessment.
Practitioners expressed concern that the multifactorial assessment runs the risk of inconsistent application and that the new standard might simply prove to be “too subjective” to apply safely.
The opportunities
The workforce also sees opportunities in the Supreme Court’s ruling. The replacement of the Cheshire West “acid test” with the multifactorial assessment could allow for narrower and more selective DoLS procedures. Respondents saw this as an important opportunity to ease the national backlog created by the acid test while targeting resources to the most sensitive and complex cases.
A snapshot from the workforce: hard cases
Perhaps the most useful information from NMCF affiliates came in response to our question about challenging cases. We asked registrants to describe cases in which they anticipated that they would struggle to apply the new AGNI standard. The responses provide a compelling test against which to assess emerging guidance. The tables below, prepared by the Essex Autonomy Project Research Team using thematic analysis, provide a typology of these reported hard cases. The tables are sorted between challenges that pertain to the ‘objective limb’ (confinement) and the ‘subjective limb’ (consent) of the AGNI standard for deprivation of liberty.
Practitioners consistently pointed to the need for guidance that would help health and social care professionals navigate these hard cases and emphasised the importance of repeating assessments and gathering evidence over time, as opposed to the assessment being a one-off judgement.
A workforce ahead of the curve
Those of us involved in the production of the NMCF webinars were struck by one piece of the registration data that seemed to show a workforce that was out ahead of the Supreme Court. One of the most-discussed elements of the ruling from the Court has been the recognition of a new form of valid consent.
In the context of Art.5 (ECHR) protections, the Court found that a person can validly consent to restrictive care arrangements even in the absence of decision-making capacity regarding those arrangements. This new form of consent has occasioned scepticism and concerns among the workforce, but on the basic question, the workforce seems to be on board with the Court’s perspective. Ten weeks before the ruling, 97% of 670 NMCF respondents agreed that a person who lacks capacity to decide where to live may still have a clearly identifiable will or preference about their placement or care arrangements.
Looking ahead
The AGNI ruling provides health and social care practitioners with a new framework for protecting the liberty rights of persons in their care. AGNI also provides the opportunity to create a more sustainable liberty assessment practice.
The views of the workforce provide hard cases that can be used to stress-test prospective guidance and ensure that it is genuinely useful to practitioners. Guidance will need to be clear on how to apply the prison-cell comparator, how to avoid mistaking acquiescence for consent, and how to navigate the hard cases that the workforce itself has identified.
About the author
Peter Tsoukkas is a Doctoral Candidate affiliated with Essex Autonomy Project, a research and public policy initiative at the University of Essex. In 2026, he provided research and technical support to the National Mental Capacity Forum to deliver a series of five national webinars for affiliates of the Forum. His own research focuses on the right of disabled persons to be included in the community. He has a background working as a frontline care worker in a small-scale group home.
