What is a deprivation of liberty? The AGNI test

What is a deprivation of liberty?

It's a loss of physical liberty of the kind Article 5 of the European Convention on Human Rights protects against. It has three elements: confinement in a restricted space for a material time, no valid consent, and the state's responsibility (AGNI, para 4).

The MCA uses the Article 5 meaning (s64(5)). Article 5 isn't about mere restrictions on movement. The difference between restricting someone's liberty and depriving them of it is one of degree or intensity, not of kind (AGNI, paras 118-119).

A deprivation of liberty isn't unlawful in itself. It's unlawful without authority: DoLS in a hospital or care home, a court order, the MHA, or s4B while a court decision is sought.

Before June 2026: the Cheshire West acid test

From 2014 to 2026 the test came from Cheshire West [2014] UKSC 19. Someone who lacked capacity to consent was deprived of liberty if they were under continuous supervision and control and not free to leave (para 49). In Lady Hale's words, 'a gilded cage is still a cage' (para 46).

The majority treated the person's compliance or lack of objection, the relative normality of the placement, and its purpose as irrelevant. It also treated a lack of MCA capacity as a lack of valid consent (AGNI, para 201).

Referrals soared, from 13,700 in the year before the judgment to 332,455 in England in 2023-24 (AGNI, para 101). Learn the acid test as history. Guidance, forms and exam questions written before June 2026 probably still assume it.

What changed in AGNI?

In AGNI [2026] UKSC 16, seven justices unanimously overruled Cheshire West (para 207). It was a reference from Northern Ireland, but it applies across the UK with immediate effect (DHSC). The court found the majority wrong in six respects:

• The acid test isn't enough. It may be relevant, but you must weigh the whole range of factors (para 184).
• Compliance and objection matter. Restrictions affect someone differently if they're content or object (para 187).
• The setting matters. Living at home or in the community isn't like a hospital or a prison (para 193).
• Innate limits aren't confinement. There has to be coercion or some restriction imposed from outside (para 195).
• Purpose matters, though it doesn't decide a case alone (para 200).
• Capacity isn't consent. Lacking MCA capacity doesn't mean someone can't give valid consent (para 201).

For the cases themselves, see key cases.

The AGNI test: the factors to weigh

Start with the person's concrete situation. No single factor decides it. DHSC's guidance lists what to weigh:

• Type of restrictions: locked doors, physical control, supervision, sedating medication, social isolation.
• Duration of the restrictions.
• Effects on the person, which differ depending on whether they object or are content.
• Manner in which the restrictions are carried out.
• Objection, in words or behaviour.
• Normality. At home, it takes greater restrictions before there's a deprivation of liberty.
• Purpose. Care and protection, rather than punishment or coercion.
• Distance from a prison cell, the comparator in borderline cases.

Coercion is a necessary element (para 187). If someone's own disability stops them leaving and they can't form a wish to leave, it's unlikely to be a deprivation of liberty (DHSC). Someone who can't move and can't express any view at all has no physical liberty to lose (para 142).

Can someone who lacks capacity consent to a deprivation of liberty?

Yes. Valid consent here is an Article 5 idea, not MCA capacity (para 201). Someone who can't decide about their care and residence may still be aware enough to know, and show, whether they're happy with their arrangements. If they are, that can be valid consent.

Mere compliance isn't enough (para 191). Sedation that suppresses objections weakens any inference of contentment (para 188). Where there's serious doubt, don't infer consent (para 53(v)).

DHSC's question is the right one: how do we know what this person understands and wants? Look at what they say and do, their past wishes, the notes, and what family and staff see. It may take several visits.

One limit. This valid consent only goes to whether there's a deprivation of liberty. It isn't consent to care or treatment, which still needs capacity or a best interests decision (CQC, June 2026).

The Cheshire West cases, looked at again

The court gave its own view of the three people in Cheshire West. MIG and MEG weren't deprived of liberty. Both showed enough contentment to amount to valid consent, and their arrangements were as normal as possible (paras 203-204). It reserved its view on P, though it doubted he was deprived of liberty (para 205).

Signs that point to a deprivation of liberty

• Attempts to leave, repeated and meaningful, not just wandering when disorientated.
• Refusing or pushing away care.
• Restraint or one-to-one care used to manage behaviour.
• Covert medication they'd object to, or sedation that affects their ability to object.
• Restricted contact with family and friends.
• Saying they want to go, or seeming unhappy or distressed.

Other signs point the other way. A settled placement that matches their wishes, a home they chose when they had capacity, or restrictions with little impact all point away from a deprivation of liberty. So does a wish to leave that would be acted on (ADASS priority tool, July 2026).

The first cases after AGNI

The fullest so far is AR [2026] EWCOP 45 (T2). AR, 25, has a moderate to severe learning disability and autism. He needs close supervision, restrictions on his movement and sometimes restraint, and he'll never be 'free to leave'. HHJ Burrows still found no deprivation of liberty.

What decided it was the protective purpose, the relative normality of the placement, his part in community life, and the lack of institutional or custodial features (para 68). The judge also doubted AR could give valid consent: he could show contentment, but not understand the arrangements it related to.

In Re SM [2026] EWCOP 46 (T2), a woman with 2:1 support in the community wasn't confined either. Both are fact-specific first-instance decisions, not templates (Mental Capacity Report, October 2026).

Applying AGNI: step by step

1. Describe the restrictions first: what they are, how long they last, their effect, and how they're imposed. Ask 'consent to what?' before you ask about consent.
2. Then look at the person's awareness, and their wishes and feelings, now and in the past.
3. If you're in doubt, or they swing between content and objecting, refer for DoLS, or apply to the Court of Protection outside hospitals and care homes (DHSC).
4. Record your reasoning either way, especially when you conclude there's no deprivation of liberty.
5. Form 1 dates from 2015 and asks why the acid test is met. Use that box to set out the AGNI factors instead.
6. Review existing authorisations as soon as is practicable. One left in place meanwhile isn't unlawful, and you can reduce restrictions without a new authorisation (DHSC).

How to record your reasoning

• The restrictions, concretely. What each one is, how often, for how long, and how it's carried out. 'Redirected four or five times a day when trying to leave' beats 'wants to leave' (ADASS forms guidance).
• Their effect on this person, and whether they're content or object, in words or behaviour.
• Their wishes and feelings, now and before, how you found them out, and anything that might mute them: sedation, fear, pressure, or not wanting to be a burden (DHSC).
• The setting and its purpose: how normal the arrangements are, and whether they're for care and protection.
• Your conclusion, including on valid consent, and what would change it.
• Who you spoke to and what you read. DHSC expects the notes, family and staff to be consulted, perhaps over several visits.