TW v Worcestershire County Council [2026] EWCOP 54 (T2) is a thoughtful ‘worked example’[1] by HHJ Tindal applying AGNI, this time – and for the first time in a reported case – in relation to a person subject to a DOLS authorization. TW was in a care home following a period of detention in hospital under s.3 MHA 1983. Section 21A MCA 2005 proceedings had been started in October 2025. For reasons which are not set out in the judgment, those proceedings were still on foot at the time that the Supreme Court handed down its decision in AGNI. As HHJ Tindal explained:
5. As at the last hearing in early August 2026, [the local authority] had still not confirmed whether it would determine on the AGNI approach whether the Placement did or did not constitute a deprivation of TW’s liberty. The Respondent authority’s change of position was confirmed in a determination by its Senior Best Interests Assessor Ms Kirby on 25 August 2026, but there was insufficient time to list the s.21A hearing before TW’s standard authorisation expired on 2nd September. I am grateful to the Respondent that at a directions hearing on 25th August, it agreed to renew an urgent authorisation subsequently extended to 15 September, on the basis the Court would at this hearing on 9th September 2026 determine whether TW’s Placement care arrangements amounted to a deprivation of her liberty under Art.5 ECHR
6. Until the hearing today, I had anticipated the Respondent authority’s stance would be to invite me to terminate the urgent authorisation on the basis of Ms Kirby’s assessment that TW was not deprived of her liberty. In fact, as I will explain, the authority has taken a broadly neutral stance. On TW’s behalf, her ALR’s position is that TW remains deprived of her liberty for the purposes of Art.5 ECHR even under the law as clarified in AGNI.
HHJ Tindal directed himself that it was for the court to decide, itself, whether TW was deprived of her liberty:
9. Moreover, as is typical for determining compliance or violation of articles of the ECHR, the Court makes that determination for itself – rather than reviewing on public law grounds the decision of the public authority as to compliance with the ECHR: see, for example, R(Begum) v Denbigh High School [2007] AC 100 (HL). So, my task is purely to decide on the evidence before me, whether TW is currently deprived of her liberty under Art.5 ECHR.[2]
HHJ Tindal was at pains to explain that the BIA, Ms Kirby, was extremely experienced, but that her assessment was hampered by the fact that she could not engage with TW. The local authority social worker who gave (written) evidence on which HHJ Tindal drew “very fairly and openly” reflected a view taken that “perhaps because Ms Kirby was unable to meet TW herself, that Ms Kirby was unable to understand the full factual picture, so whilst she had reached the clear view that TW was not being deprived of her liberty, the Respondent authority’s position before me is neutral” (paragraph 26). Indeed, the local authority’s own counsel took the court through the BIA’s assessment explaining, on the basis of the social worker’s evidence, how the position was different to that understood by the BIA.
HHJ Tindal undertook a review of the law, acknowledging his debt to the judgments of HHJ Burrows, and of the post-AGNI cases, noting that he did:
50. […] not cite any of these cases (or those since my judgment) as determinative of the present case – all the cases turn on their own facts. Nevertheless, one can start to see a spectrum of examples from cases. At one end are clear examples of no ‘deprivation of liberty’ on the AGNI approach, such as MIG in Cheshire West (a young person happy in a foster placement) and Mustafa (a young person happy at a special school). Slightly less clear-cut, but still towards the same end of no deprivation of liberty are the cases of people apparently broadly settled in secure units like MEG and PK/MK. At the other end of the spectrum are clear examples of ‘deprivation of liberty’, such as the two cases before Theis V-P: RF (a person objecting to a secure placement in England well away from his family) and ST (a teenager strongly objecting to a secure unit). Somewhere in between are the more borderline cases where objection was occasional and changeable (SM), or there is neither clear objection nor clear consent – P, AR and BM. The closest on the facts to this case appears to be AR, albeit with the important distinction there of a lack of clear objection to their accommodation, by comparison here to TW’s repeated objection to the Placement, even if primarily directed at those external to the home rather than the care staff TW deals with on a day-to-day basis. The important thing is that these cases all illustrate the practical application in individual cases of the precedent set by AGNI.
The observations made by HHJ Tindal about analysing confinement merit setting out in full:
51. The second general point is on the multifactorial assessment of the ‘objective element’ (or ‘confinement’) which the Court in AGNI recognised at [183]-[186] is more challenging to apply in practice than the simpler ‘acid test’ in Cheshire West. It is clear from AGNI and the leading ECtHR cases that there is a multifactorial test and focus on the individual’s ‘concrete situation’ taking account of a whole range of factors, such as the nature, type, duration, effects and manner of implementation of the living arrangements, with no single factor being determinative. Whilst it may be tempting to search through AGNI for a clear ‘touchstone’, the Court were anxious not to replace one flawed ‘acid test’ with another. Therefore, it is necessary in each case to examine and weigh all the relevant circumstances.
52. Having said that, the change in AGNI from Cheshire West – whilst substantial – should not be over-stated. The Court in AGNI did not say the two ‘acid test’ factors of ‘continuous supervision and control’ and ‘not free to leave’ were irrelevant. On the contrary, they were clearly relevant, simply not exclusively relevant. As the Court in AGNI explained at [184]:
“[I]t may well be that an individual cannot be subject to a deprivation of liberty under Art.5 without the acid test being met, but this is not sufficient. To determine whether an individual is subject to such deprivation, a Court must focus on their concrete situation and must take account of the whole range of factors in the particular case, including the type, duration, effect and manner of implementation of the measures in question.”
In other words, the Supreme Court in AGNI came close to saying the two Cheshire West ‘acid test’ factors are necessary but not sufficient for ‘confinement’. Clearly, it may be unlikely (albeit not impossible) for arrangements which were not a deprivation of liberty on the Cheshire West approach to suddenly become a deprivation of liberty on the AGNI approach. However, arrangements which were a deprivation of liberty on on the Cheshire West approach may still be so on the AGNI approach, provided they not only involve the two Cheshire West ‘acid test’ factors, but also other factors which on balance cumulatively amount to ‘deprivation of liberty’ on the AGNI approach. Even if some people like MIG and MEG would no longer be assessed as ‘deprived of liberty’ on the AGNI approach, there may be some people, like RF and ST, who were and remain deprived of liberty. So, previous DoLS assessments of someone’s placement, even though applying the Cheshire West ‘acid test’, are still relevant to (but not determinative of) new assessments on the AGNI approach.
53. Moreover, whilst all the ECtHR cases on Art.5 ECHR – from Mafia house arrest to immigration detention to protest ‘kettling’ – assess the individual’s ‘concrete situation’ and ‘taking into account the whole range of factors in the particular case, including the type, duration, effect and manner of implementation of the measures in question’, typically the most useful guidance can be drawn from ECtHR cases in the mental capacity field. Reading carefully through the ECtHR’s 14 decisions in that field discussed in AGNI at [149]-[182], certain factors more specific to mental capacity regularly recur. In my original oral judgment, I quoted AR at [60] where HHJ Burrows endorsed the list of such factors Counsel before him had drawn up. Since my oral judgment, HHJ Burrows himself in BM adopted Theis V-P’s similar but more authoritative list of such factors in ST [66]-[67]. She suggested
“An evaluation of the overall nature and effect of the arrangements in place is now required in determining whether measures amount to a deprivation of liberty when viewed in their full context. Relevant considerations for the Court to take into account in undertaking this evaluation can include: (i) the degree of control exercised over that person; (ii) the extent to which their movements are restricted; (iii) the opportunities available to maintain relationships; (iv) participation in ordinary circumstances; (v) the duration of the arrangements; (vi) the purpose and necessity of the arrangements; [and] (vii) whether less restrictive alternatives exist … Part of that evaluation should include the individual’s own experience of the arrangements including matters such as their wishes and feelings, level of contentment and any signs of objections to the arrangements.” (my italics)
As Theis V-P was at pains to stress there (as I have italicised), this list is not exhaustive, yet one can imagine it may appear as a useful list of ‘signpost headings’ in DoLS assessments and judgments. Nevertheless, they will also need to consider any other relevant circumstances (e.g. ‘relative normality’) before standing back and reaching an all-round assessment (not too dissimilar an intellectual exercise from the s.4 MCA ‘balance sheet’).
54. However, returning to my original judgment, without in any way detracting from the importance of such a full ‘multifactorial assessment’ of all relevant circumstances, I would highlight the potential significance of ‘coercion’ as animating various other relevant factors in that assessment, stressed by the Supreme Court in AGNI at [195] quoted above. For example, the presence or absence of ‘coercion’ is likely to be relevant to the degree of control and freedom, the purpose of such arrangements (see AGNI at [130]) and their ‘relative normality’ and (dis)similarity to an ordinary home or prison cell (AGNI at [193]). Moreover, in AGNI at [187], the Court rejected the view in Cheshire West that ‘compliance or lack of objection’ was only relevant to ‘valid consent’, but not to confinement’:
“…The effect of restrictions on an individual is liable to differ according to whether they are content with or object to their living arrangements, and it is therefore relevant to consider the effect of the living arrangements on them… If an individual objects to the arrangements, this is likely to result in conflict. There may be arguments, attempts to leave a particular place, expressions of a wish to leave, or conduct showing a wish to leave. The resulting stress for the individual in having their objections overruled may lead to suffering and result in the use of physical force or physical restraint. These features of the individual’s concrete situation are likely to be clear indicators that they are being confined, in the sense of suffering a deprivation of liberty. The necessary element of coercion is present because the individual is being compelled to live somewhere they do not want to live. Conversely, the absence of objections is likely to result in an absence of conflict which is equally capable of being relevant. If the arrangements for an individual’s care and treatment accord with their known wishes and feelings, and they are happy with them, it may be difficult to conclude that they are subject to a deprivation of liberty. There is unlikely to be any element of coercion present in that situation.” (my [emphasis])
55. In short, if someone actively objects to their placement – particularly if that leads to conflict and unhappiness, or even potentially physical restraint – there is clearly an element of coercion as they are being compelled to live somewhere they did not want to live, which points towards ‘confinement’. By contrast, if someone is actively happy in their placement, that would not only point towards ‘valid consent’, it would also point against their being ‘confined’ at all because they would not experience any element of coercion. So, in MIG, MEG and Mustafa, it was their broad (if not unqualified) acceptance of their respective placements which underpinned their protective and caring purpose, ‘relative normality’ and lack of coercion, so they were not ‘confinements’ in the first place, even aside from the evident ‘valid consent’ to them. Likewise, in the more borderline case of AR, the absence of objection could not constitute AR’s valid consent to the placement, but it weighed against his ‘confinement’. In SM, objection was occasional and changeable, so could not itself change a placement that was not a deprivation of liberty into one that was. By contrast, in RF, clear and consistent objection pointed strongly towards ‘confinement’. So, clear and consistent objection is not determinative but a significant factor: generally and in this case.
HHJ Tindal, having made observations about valid consent (especially – rightly – that the issue is not so much about the concept, but about assessing it) and state imputability, then came on to safeguards in the absence of deprivation of liberty, again in comments which merit reproduction in full:
61. My final general observation is that in AGNI at [10], the Supreme Court stressed the importance that deprivation of liberty under Art.5 ECHR is not the ‘be-all and end-all’ of protections available to incapacitated adults and Art.8 ECHR is also relevant. As they said:
“…[I]ncapacitated adults have the protection of Article 8 … in the event of interference with their right to respect for private, family and home life (see for example, Hillingdon LBC v Neary [2011] 4 All ER 584…). The right to respect for private life may require that their views are sought and taken into account, where they are able to express an opinion about the circumstances in which they are living. There are also other safeguards in the MCA: ss.1(5), 1(6), 4, 6, 35-41 and 44. Decision-makers in England and Wales were (and continue to be) required to have regard to the Code of Practice issued pursuant to the MCA 2005, and the MCA requires them to act in the individual’s best interests. Support plans for the provision of, and arrangements for, care and accommodation by local authorities after a community care assessment are expected to be subject to at least annual reviews. In addition, local authorities are under a duty to investigate any safeguarding issues that may arise in a residential placement and like NHS bodies and placement providers, owe duties of care to service users at common law.”
62. Here it is important to refer to s.6 MCA cited by the Supreme Court there (along with s.5). s.5 MCA in essence renders someone (‘D’) not liable in law for the lack of someone (P)’s consent to D’s acts in connection with P’s care and treatment if D reasonably believes P lacks capacity and it will be in P’s best interests for that act to be done. s.6 MCA excludes D’s acts intended to restrain P unless D reaonably believes it is necssary to avoid harm to P and such restraint by D of P is proportionate to the likelihood of P suffering harm and its seriousness. ‘Restraint’ is defined in s.6(4) as using or threatening to use force or to secure the act to which P resists, or restricting P’s ‘liberty of movement’, whether or not P resists.
63. This ‘restriction of P’s liberty of movement’ in s.6 MCA is clearly intended to mean something different than P’s ‘deprivation of liberty’ governed under s.64 MCA by Art.5 ECHR. As the Supreme Court said in AGNI at [118]-[119], the ECtHR draws a distinction between ‘deprivation of liberty’ under Art.5 and mere ‘restriction of liberty’, although this is a distinction of degree or intensity, not nature or substance. In fact, the reason the ECtHR draws this precise distinction is to differentiate between the stricter applicability of Art.5 ECHR with ‘deprivation of liberty’, from ‘restriction of liberty’ to which there is a qualified right in a different provision of the ECHR (Art.2 Protocol 4) not incorporated in the UK.
64. However, whilst people in the UK cannot therefore claim that a mere ‘restriction of liberty’ under Art.2 Pt 4 ECHR (as opposed to a ‘deprivation of liberty’ under Art.5 ECHR) by a public authority breaches s.6 Human Rights Act 1998 (‘HRA’), they can certainly claim such arrangements ‘restricting their liberty’ disproportionately ‘interfere with their private and/or family life’ under Art.8 ECHR, as in Neary. As also discussed in AGNI at [10], they may also claim in common law for battery (for restraint), or false imprisonment (with a wider meaning than deprivation of liberty in Art.5: Jalloh v SSHD [2021] AC 262 (SC)).[3] So, there is no shortage of legal safeguards for people lacking mental capacity whose liberty is restricted not deprived in care settings. Indeed, local authorities who in the wake of AGNI precipitately assess people previously subject to DoLS as not ‘deprived of their liberty’ on the AGNI test and curtail standard authorisations may take the risk they are wrong and have violated Art.5 ECHR; or even if Art.5 does not apply, they may still violate Art.8 ECHR if placements are disproportionate interferences with private and/or family life (as in Neary).
65. Nevertheless, a commonly-voiced anxiety amongst ‘DoLS practitioners’ is that theoretical legal rights are inadequate protection against these risks, because people who lack mental capacity to decide residence may well also lack litigation capacity and more practically may have no realistic access to Court without the RPR appointed with DoLS authorisations and who can challenge them under s.21A MCA. The Court of Protection has been invited to continue to ‘supervise’ the best interests of people previously under DoLS authorisations by fixing ‘reviews’ or appointing advocates. As I noted in my oral judgment, HHJ Burrows discussed this in AR and decided it was unecessary to list a ‘review’ having found Art.5 did not apply, as the authority there had funded an ‘IMCA’ advocate for AR. I would add in this finalised judgment that since I gave my oral judgment, HHJ Burrows returned to that issue in more detail in PK and MK at [18]-[43], which I would encourage practitioners to read. In brief summary, HHJ Burrows observed there that unlike with ‘DoLS’ for deprivation of liberty under Art.5 under Sch.A1 MCA, the state had not introduced a bespoke regulatory scheme for Art.8 under the aegis of the Court of Protection. Instead it had chosen to protect and reflect Art.8 rights in other legislation – not just the HRA, but the amended Children Act 1989, other parts of the MCA and the Care Act 2014. He noted the relationship between the latter two for adults lacking capacity had recently been discussed by the Court of Appeal in TDB v Haringey LBC [2026] EWCA Civ 1184. HHJ Burrows noted the discussion of safeguards in the MCA and Care Act, such as IMCAs and Care Act Advocates, to protect Art.8 rights of those lacking capacity but not deprived of their liberty under Art.5, which may avoid the need for ongoing supervision by the Court of Protection.
Applying AGNI to the facts of the case before him, HHJ Tindal did so in what he acknowledged was “perhaps an unusual reverse order” (paragraph 66), having observed that “[o]f course, as HHJ Burrows said in AR, it is ordinarily better to consider confinement before consent, to focus on what any consent is to. However, that is not an inflexible rule. This case is all about confinement – the objective criteria – and it helps, at least in this case, in reaching the right answer on that to deal with the other criteria first.”
Doing so, it was easy to dispose of the question of state imputability: the Placement and TW’s care plan had always been commissioned and monitored by the state in the form of the Respondent authority (and was co-funded by it and the NHS as ‘aftercare’ under s.117 MHA).
Turning to ‘valid consent,’ HHJ Tindal considered that:
68. […] there is clearly no valid consent by TW to her living arrangements at the Placement, whether or not they amount to ‘confinement’ under the objective criteria. This case is far clearer than P and AR because here, as I have explained, TW has consistently objected to the Placement, even if she has sometimes (not always) complied with carers and some activities within the home. TW’s view has consistently been for the past 18 months that she wants to return home to live with her mum. Ms Kirby’s attempt to distinguish between a desire to go home and consent to the day-to-day care in the Placement is, in my view, an over-subtle approach that is neither practical nor realistic (c.f. AGNI at [53(v)]) for someone with limited understanding like TW. Indeed, in this case (unlike in AR and P), the opposite inference of a clear absence of valid consent can be drawn, as TW has so consistently expressed, in particular to external professionals coming to see her, that she not only wants to return home with her mother, but is actively unhappy with various aspects of the Placement, even if she does not always express it to staff there. Therefore, there is, in my view, clearly no valid consent to any confinement in this case.
HHJ Tindal therefore turned to the:
69. […] crucial objective element of ‘confinement’ in this case. To use the expression so often used in Strasbourg, the type, duration, effect, and manner of implementation of TW’s living arrangements are that this is a care package for TW as a disabled person lacking capacity to decide her residence at a specialist care home following her discharge 18 months ago from psychiatric hospital (which was clearly ‘confinement’). It is not short-term or temporary, but a long-term and potentially permanent placement unless the Court of Protection deciding TW can return home to live with her mother as she so obviously wishes. The Placement is a particular restricted space and has lasted a considerable period of time, may continue to do so and involves TW living somewhere she does not want to live. Whether that is enough for that to cross the line to amount to a deprivation of liberty, in my judgment, depends upon the multifactorial assessment, but with particular focus on the factors of relevance in the mental capacity field.
70. I start with the factors which point against TW being deprived of her liberty. First and foremost, I agree with Miss Haines that as in AR and many other cases, the purpose of the Placement in this case is therapeutic and protective, not punitive. Secondly, I accept the Placement is ‘relatively normal’ for people with TW’s needs and disabilities, even if not for non-disabled people. As the Court said in AGNI at [198] and [199], ‘liberty means the same thing for everyone … it means physical liberty, including the freedom to go where one pleases’, which is not discriminatory against those who are disabled because the comparison must be with those in a relevantly similar position. In my judgment, the Placement is relatively normal for someone relatively similar to TW, even though it is not a home environment. However, ‘relative normality’ is a relatively weak factor as TW has largely withdrawn from usual activities even for someone with her disabilities: she does not leave the Placement even with staff, she rarely engages in activities, she is frequently withdrawn and contact with her mother is highly restricted (due in part to her mother’s own behaviour).
71. On the other side of the balance, TW is under continuous supervision and control. Whilst supervision is not physically present continuously does not mean it is not there continuously, since TW is continuously monitored and indeed regularly interrupted by staff – for the best therapeutic reasons, but the point is the staff have control, not TW. The care plan – including restraint – is there to be engaged if there is an escalation in TW’s behaviour. Indeed, that was the view of Ms Whitehouse in February 2025 even before it was amended to include restraint, as the staff have always known where TW is, she has 1:1 staff in the day, 1:3 during the night, and staff always available to step in during an emergency; and TW’s room is constantly monitored for staff to intervene, including coming in if necessary.
72. Likewise, for the same reasons as Ms Whitehouse concluded in February 2025, TW is not free to leave the Placement. The difficulty with Ms Kirby’s more recent analysis that if TW simply left the Placement she would not be stopped, is that the care plan would simply not operate in that way. The care plan is clear that TW is not free to leave the Placement without staff. The fact that it does not mandate physical restraint if TW tries to leave the Placement does not mean she is free to leave it. There are several practical and physical impediments: locked windows, locked gates and so on, which would make it difficult for her to do so, and in any event, the staff would persuade TW to stay and even prevent her from leaving if she tried, so that she does not have a voluntary choice to leave. Therefore, as Ms Whitehouse found, the Cheshire West ‘acid test’ is met, but as I say, that is a possibly necessary but certainly not a sufficient condition for ‘confinement’ under Art.5 ECHR, especially when balanced against the Placement’s therapeutic purpose and relative normality I have noted.
73. However, as Ms Chisholm argued, whilst there has been no actual physical restraint of TW in the Placement because of the skill of staff in managing TW’s episodes of emotional dysregulation so far, the fact her care plan makes provision for such restraint if necessary; and for regular antipsychotic medication which staff encourage her to have, in my judgment is another factor pointing towards ‘deprivation of liberty’. This is not so much because TW is medicated to prevent objections, but rather because it explains why her objections or dysregulation are reduced only by her good relationship with some particular staff from whom she does usually accept her medication (but not always e.g. in January 2026). It is striking that TW presents totally differently to those external to the Placement, whether from the Respondent authority, or the RPR or ALR, or professionals like Dr Parvez. So, the medication and risk of restraint written into the care plan weighs in favour of ‘confinement’.
74. However, as Miss Haines said, this case is finely balanced but really comes down to one consideration – TW’s objection to the Placement. I accept, as said by the Supreme Court in AGNI at [195] that there must be a ‘necessary element of coercion’. However, as the Court also said at [187] as I quoted earlier, if an individual objects to the arrangements, that is present because they are being compelled to live somewhere they do not want to live. In my judgment, that is the position with TW. Like the applicant in Mihailovs, discussed in AGNI at [170]-[172], TW is capable of expressing objections to her placement in a restricted care home. However, whilst Mr Mihailovs objected to one care home (which did amount to a deprivation of liberty) but consented to another care home when he moved where he had more freedom (which did not amount to deprivation of liberty), TW has consistently objected to the Placement to external professionals and visitors. Whilst she has not done so regularly to staff (but has on occasion), this is a reflection of their skill in managing TW’s emotions, as I have explained. Accordingly, TW may not be so resistant that she has tried to escape or that she has needed to be physically restrained, but routinely and regularly, especially to external professionals, TW is clearly expressing her experience of coercion in being required to stay in the Placement where she does not want to live; and of not being allowed to live with the person she wants to live with, her mother AW. In short, TW is experiencing coercion by being forced to live in the Placement when she does not wish to do so. Therefore, whilst to the external observer, this Placement may be very far from the paradigm of confinement in a prison cell, to TW this clearly feels like a prison cell, even if she gets on well with and is compliant to some of the ‘warders’. It clearly feels to TW like she is being kept there against her will and like she is not being listened to, hence her fairly forthright views expressed regularly to professionals, whether responsible for the Placement or not. In those circumstances, whilst I agree with Miss Haines this is a borderline case, I am satisfied that it does tip over the line into a true deprivation of liberty under Art.5 ECHR, not only because of TW’s objection, but on a balance of all relevant factors I have described.
HHJ Tindal considered the alternative that, if he was wrong in determining that TW was deprived of his liberty:
75. […] this is clearly a case where the restrictions amount to an interference under Art.8 ECHR with TW’s liberty and both her private and family life where the Court may have a role in monitoring the Placement’s proportionality, as discussed in AR (and since my judgment, in PK and MK). However, unlike those cases, as this case is not brought to an end by my decision, there is no need for an advocate to be appointed under the MCA or Care Act. Indeed, even if I had found Art.5 ECHR did not apply, the case would have continued under s.16 MCA to determine the ‘best interests’ decision of whether TW should stay at the Placement or return home to live with her mother and accordingly the Court would have been able to review the proportionality of the Placement under Art.8 ECHR on an ongoing basis. However, as it stands, my conclusion is that there is still an Art.5 ECHR deprivation of liberty, so I maintain the urgent authorisation. Whilst Ms Harrison and her colleagues may want to consider this, what I anticipate is likely to happen is that another standard authorisation will be requested and issued. There is obviously time before the urgent authorisation expires next week to do so.
Comment
As HHJ Tindal was at pains to point out, this judgment is not a precedent. It is, however, a judgment which stands alongside those of HHJ Burrows in showing a judge seeking faithfully to track through the application to AGNI. His overview of the ‘spectrum’ of cases decided between July and mid-October 2026 is particularly helpful. His observations about the necessity of an element of coercion being present are undoubtedly faithful to AGNI and indeed (and more importantly) to the Strasbourg caselaw. And his observations about pre-AGNI DoLS assessments focusing on the ‘acid test’ as being relevant to (but not determinative of) new assessments on the AGNI approach are very helpful.
Whilst I understand why HHJ Tindal looked to the ‘valid consent’ limb here first, what it might be said that he was actually doing was looking to “P’s understanding and perception of the circumstances.” That understanding and perception was for him, and, in many other cases will also be, crucial in identifying whether the arrangements give rise to the necessary element of coercion to satisfy the objective element (and, in most cases where the subjective element is satisfied, will also give a rather rapid answer to the question of whether the person is consenting, given the inherent unlikeliness of a person consenting to something to which they perceive as coercive). But starting with valid consent does, I suggest, risk losing focus on what the person is being asked to consent to.
One final point relates to procedure. On the face of the judgment, it is not entirely clear as to the basis upon which it was proper for the managing authority to grant itself an urgent authorisation for two reasons. The first is that it is not clear how the situation was “sudden and unforeseen” (the normal use for urgent authorisations, according to paragraph 6.2 of the DoLS Code of Practice). The second is that, by the time that the urgent authorisation was granted, the BIA had already indicated that she considered that TW was not deprived of her liberty. It is therefore unclear how it could be said that the managing authority was required to make an application for a standard authorisation (a precondition for the self-grant of an urgent authorisation: see paragraph 76 of Schedule 1 to the MCA 2005). It may well be that there is more to the story in respect of both aspects that meet the eye.
[1] Referred to as such by the judge himself, the judgment expressly being published “as we are still in the early days of applying AGNI and it may be helpful to add to the ‘worked examples’ available” (paragraph 10). The judgment was given on 9 September 2016, but the transcript was finalised on 15 October, allowing HHJ Tindal to refer to all the judgments decided up to that that point.
[2] With respect, the analogy with the Begum position may not be direct. There was no suggestion that the local authority was not complying with the ECHR; the better argument might be that, as HHJ Tindal also noted, the task of the Court of Protection on a s.21A application is to determine whether the “qualifying requirements” for a person lawfully to be deprived of their liberty under the framework contained in Schedule A1 to the MCA 2005 are satisfied. The “best interests requirement” includes (paragraph 16(2) of Schedule A1) that the person “is, or is to be, a detained resident.” A “detained resident” is defined in paragraph 6 of Schedule A1 means a person detained in a hospital or care home for the purpose of being given care or treatment in circumstances which amount to deprivation of the person’s liberty. So if the circumstances do not amount to a deprivation of liberty, the person is not a detained resident, and hence the best interests requirement is not made out.
[3] An issue with false imprisonment in this zone is that, as noted by the Law Commission in its report upon Mental Capacity and Deprivation of Liberty (see paragraph 15.44) it has been understood to date that it would not apply to a person who did not express or manifest (by their actions) a desire to leave their accommodation, or was not aware that they would be prevented from leaving if they attempted to do so: see R v Bournewood Community Mental Health NHS Trust [1998] UKHL 24, [1999] 1 A.C. 458 at 486 per Lord Goff.
