In NHS Leicester, Leicestershire and Rutland ICB v AA & Ors [2026] EWCOP 56 (T1), Tribunal Judge Sharron, sitting as a Tier 1 judge, has further added to the post-AGNI stock of cases showing the working through of the decision at first instance. Whilst this judgment has no precedent value, as a judgment by a Tier 1 judge, it is a judgment which carries with it the weight of practical experience, Tribunal Judge Sharron being a fee paid judge alongside her practice as a Court of Protection barrister.
AA was a young man aged 26, with learning disabilities, epilepsy and diabetes; he was non-verbal. He lived in a supported living placement, and at paragraph 15, TJ Sharron summarised the restrictions to which he was subject as including the following:
a. AA is required to live at the supported living placement. He is not able to choose to reside or stay overnight elsewhere;
b. AA receives 2:1 support day and night (with waking night staff). He is under eyesight observations during the day with observations every 15 minutes at night;
c. There is a bed sensor in place;
d. The front door of the property is locked as are windows and gates; [C4]
e. If AA were to attempt to leave the property unaccompanied, he would be brought back; [C4]
f. There is a lap strap on AA’s wheelchair;
g. When travelling child safety locks are activated on the vehicle; [C4]
h. AA’s access to the kitchen is supervised and AA’s food is stored in a locked cupboard; [C1072]
i. AA’s food shopping is undertaken by staff in line with AA’s dietary needs; [C1072]
j. AA’s dietary intake is strictly controlled;
k. AA is accompanied by staff whenever he leaves the property. AA is offered a choice of activities that have been risk assessed as being appropriate by staff;
l. AA has been prescribed Risperidone since 03.10.25 which was introduced as a response to the severity of AA’s headbanging and self-injurious behaviour;
m. AA’s contact with his family is restricted in accordance with the contact orders in place and is supervised by staff;
n. AA is not able to visit the family home;
o. AA does not have access to his own money which is kept in a locked safe at the placement; [C572]
p. Physical restraint is authorised in AA’s positive behaviour support plan, including:
i. Escorting, rear-view escort, and single-hand wrist grab release; [C803]
ii. Straight arm hold, double cup fist hold, ‘other authorised safeholds in line with PMVA training and DoLS authorisation. [C803]
The ICB responsible for AA’s care arrangements contended that AA was not deprived of his liberty, TJ Sharron summarising the ICB’s position thus:
28. The ICB submits that the objective element of a deprivation of liberty is not met, as AA’s arrangements are as close to normal as possible, the purpose of any restrictions is protective (rather than coercive) and examples of AA displaying challenging behaviour are attributable to his condition rather than being indicative of objection. The ICB points to the fact that incidents of headbanging and self-injurious or aggressive behaviour have declined considerably over the last 12 months and that there has only been one incident of restraint since April 2026. The ICB acknowledges that Risperidone has been prescribed since October 2025, but highlights that it is being administered at the lowest possible therapeutic dose. AA is described by others at various times as being ‘happy’ or ‘settled’ and the ICB points to the fact that AA can recognise pictures of his home, and will point to it, if he wants to come home when he is out in the community.
29. Mr Fullwood invited the court to find that examples of challenging or self-injurious behaviour are either ‘sensory seeking’ or forms of ‘communication’. I am quite content to accept, based upon the evidence, that AA’s challenging or self-injurious behaviour is either sensory seeking, or a form of communication. Where such behaviour is a form of communication, however, I have found it more difficult to be clear as to what AA is expressing through such communication.
The Official Solicitor on AA’s behalf agreed that AA was not deprived of his liberty, her argument being summarised thus:
34. […] In essence, it is contended that AA is not objectively confined, on the basis that the arrangements are relatively normal for him, the purpose of the restrictions is protective, and the degree and intensity of the restrictions is not sufficient to cross the line into confinement. It is further submitted that AA’s challenging behaviours should be seen as part of his presentation, rather than evidence of objection, and that he appeared happy/content at the placement when his representatives have visited.
36. […] In response to oral submissions from Ms Hampshire [on behalf of AA’s father], Ms Pudney, on behalf of the Official Solicitor agreed that the restrictions on family contact, and the fact that the placement prevented AA from living with his family, were relevant factors to consider. However, Ms Pudney submitted that this did not tip the overall balance of the restrictions in favour of a deprivation of liberty arising on the facts.
36. There is no reference within the Official Solicitor’s analysis as to the significant role that Risperidone appears to have played in addressing what were extremely high levels of self-injurious behaviour that AA was displaying, within the last 12 months. This is an issue which has troubled the court, when it comes to assessing what AA’s experience of his care arrangements may be.
TJ Sharron noted that, because of the way in which the case had evolved, the Official Solicitor had advanced her written position before sight of materials from AA’s parents which made the positive case that their son was deprived of his liberty.
In determining whether AA was deprived of his liberty, TJ Sharron directed herself by factors identified by Mrs Justice Theis at paragraphs 66-67 of Essex County Council v MH & GH & ST [2026] EWHC 2328 (Fam).
Three aspects of TJ Sharron’s judgment are of particular interest.
First, TJ Sharron’s analysis of the fact that Risperidone was administered as part of AA’s daily regime. As she noted at paragraph 54, directing herself by reference to paragraph 188 of AGNI (in which the Supreme Court identified that “[t]he administration of medication (including antipsychotic drugs or tranquilisers) is likely to be highly relevant in supporting the existence of the objective element of confinement because it suppresses the ability and freedom to express wishes and feelings”:
The administration of Risperidone, as part of this daily regime, which is not being used to treat an underlying core disorder but to suppress behaviours that challenge, is in my view also significant, both in relation to whether there is objective confinement, as well as what can be interpreted about AA’s wishes and feelings from his current presentation.
Second, TJ Sharron’s analysis of AA’s ‘participation in ordinary circumstances’[1]:
65. As set out above, the only place that AA is going to is the Range. It is positive to see that AA is now starting to leave the placement for some time each day, but I accept the submission of the family that AA is not participating in the types of activity that other young people of his age may do, including people with learning disabilities and autism. AA is not, for example, attending college, a day centre, or any groups where he comes in to contact with peers. AA sees his family at his placement, and they can accompany him to the Range, but he is not able to go and spend time with his family at their homes, or to be part of family gatherings, as most people of his age would do.
66. Linked to the above is the issue of relative normality. In my view, great caution needs to be applied when considering what constitutes relative normality for an individual who is subject to high levels of restriction. It is tempting to draw the conclusion that just because a person is assessed as requiring a particular level of support in one setting, that this must be what is normal for anyone in their position. However, behaviour can be greatly impacted by environment and most people who practice within the Court of Protection will have experience of someone who has moved environment, and who has suddenly required a lot fewer (or indeed perhaps more) restrictions. AA’s parents submit that AA’s current life is not relatively normal for him, and that prior to his hospital admission and discharge to his current supported living placement, AA was accessing lots of different activities and had travelled on holiday to lots of countries. This is a submission with some force and was not challenged, in terms of the evidential background, by the other parties.
67. Many young people with autism and learning disabilities participate in a much greater range of ordinary activities than AA (attending education, day centres, or group activities). Whilst it is clear that those responsible for AA’s care hope that, over time, AA’s life will move in that direction, at this juncture, AA’s day to day existence is much narrower than many people in a similar situation enjoy, and he is isolated from the outside world. This is a factor which, in my view, taken together with the other restrictions on him, weighs in favour of confinement.
Third: TJ Sharron’s analysis of AA’s “experience, level of contentment and signs of objection”:
74. AA is not capable of communicating verbally and therefore he is unable to articulate his wishes and feelings, and his behaviour must be interpreted for an indication of what he is experiencing. In the early part of AA’s placement, he was demonstrating high levels of head banging and self-injurious behaviour. I do not think any party would seriously suggest that AA’s behaviour between June 2025 (following admission) to November 2025, was not indicative of objection, and nobody did suggest that. Indeed, the ICB relies on the fact that there has been a dramatic reduction in headbanging incidents, as evidence of AA being more settled and happy at the placement.
75. The fact that someone is happier, does not mean, however, that they are happy/content with the arrangements, or that they would choose them if they were given a choice. AA’s parents believe AA would want to come back to the family home if given a choice; in the absence of it being an available option, AA’s views have not been sought on this (for example, by showing him pictures of the two options) and so it is not possible for the court to know what AA’s response to this would be.
76. It is pleasing to note that AA now appears to be much more settled, that he is engaging with staff, and starting to go out daily. I readily accept that some of AA’s challenging/self-injurious is likely to be sensory related or to be a communication of frustration regarding day to day matters (rather than to signify objection more generally).
77. However, there are significant features of AA’s presentation which have given rise to serious doubt in my mind, as to whether AA is genuinely content with the arrangements in place, or whether his behaviour is communicating objection. I identify the following significant question marks regarding what can be interpreted about AA’s experience of his arrangements:
i. The fact that AA’s high levels of self-injurious behaviour reduced suddenly following the administration of Risperidone from 03 October 2025 onwards. The dose of the medication has been reduced, however, the therapeutic effect of the medication appears to have been maintained. I do not know whether AA’s current behavioural presentation would be maintained if the medication was stopped altogether, and this has not been tried. It is hard to reliably interpret what AA’s behaviour is communicating, in circumstances where he is subject to medication which can suppress objection and the ability and freedom to express wishes and feelings;
ii. It is acknowledged in the evidence that AA is likely to perceive the restrictions in place around food as giving rise to a loss of control which may make him agitated/aggressive; [C1258]
iii. The fact that AA continues to display self-injurious or aggressive behaviour which has no obvious trigger. The attendance note of Mr Chapman dated 27 August 2026 records 4 incidents of self-injurious or challenging behaviour between 27 July and 24 August 2026, where no trigger was identified [C159]. One of these involved an attack on a member of his care staff whilst travelling in a car, and the other three involved self-injury. I was informed that AA punched a hole in the wall on 28 August 2026 and in the month of September (up to the date of the hearing) there had been 4 incidents (although I am unaware of whether these were accounted for in terms of known triggers);
iv. AA’s parents are in regular contact with him and they spend sustained periods of time with him throughout the week. They both consider that unexplained challenging behaviour is AA communicating that he is not happy about something, and this is, in my view, consistent with AA’s PBS.
v. There appears to be a consensus that AA enjoys contact with his family. AA’s mother submits that AA is happy during contact but gets agitated when it is time for contact to end. I do not fully understand how AA experiences the restrictions on contact and how this impacts him overall.
vi. AA is reported to be spending long periods of the day in bed/asleep when his family are not there. It is not clear to me if this is evidence of withdrawal, or that AA or is not content, or whether there is some other reason for it.
78. I have considered carefully what the Supreme Court said in AGNI at § 191 as follows:
‘191. We recognise that there may be considerable evidential difficulties in ascertaining whether a person who is severely autistic or who has other profound cognitive disabilities is content with and not objecting to their living arrangements. Inevitably there will be a wide spectrum of cases, with cases at one end where eliciting evidence of positive expressions of wishes and feelings about the care placement will be impossible, and at the other end, cases (like MIG’s and MEG’s in Cheshire West, and the applicant’s attitude to the Lielberze home in Mihailovs) where a tacit positive indication of wishes and feelings showing contentment with the arrangements can be ascertained. In the latter cases, such evidence is relevant and should not be excluded from consideration. The cases between the two ends of the spectrum will create varying degrees of difficulty and will require anxious consideration to determine what effect the applicable restrictions are having and what attitude the affected individual has to them. As we have said, it may be that if nothing more than mere compliance or acquiescence is a feature of the case, that is not enough. If the individual is capable of expressing a view and there is serious doubt about their attitude, no inference should be drawn.’
79. Having anxiously considered a whole range of evidence about AA’s presentation, I do have a serious doubt as to what AA’s experience of his care arrangements is, and whether he is genuinely content, or whether he is objecting to all or part of his arrangements.
TJ Sharron concluded that:
81. AA is objectively confined. Whilst there is no hierarchy of factors, in AA’s case, the factors that I find weigh heavily in reaching this view, are the degree of control exercised over all aspects of his day to day life, his lack of participation in ordinary activities, including activities that were previously normal for him, and would be relatively normal for other young people in his position, the restrictions in place on contact and family life, and the regular use of behaviour suppressing medication. In terms of AA’s wishes and feelings, as set out above, there is a mixed picture and I am left with serious doubt as whether AA is genuinely content or whether he objects to some or all of the arrangements. I therefore do find that there is an objective deprivation of liberty, and I am satisfied that AA is not able to provide valid consent for the same.
There was no suggestion that, if AA was objectively confined, that he could validly consent to such confinement given his level of cognitive impairment; as his confinement was clearly imputable to the state, he was therefore to be seen to be deprived of his liberty, and TJ Sharron made an appropriate order providing authority for this, noting, at paragraph 82 that:
People who lack capacity are inherently vulnerable and amongst them, those who are unable to speak, are the most vulnerable of all. Whilst I recognise that the determination the court must ultimately make is a binary one, it is important, in my view, to acknowledge those cases where there is genuine uncertainty, and it is appropriate to err on the side of caution.
Comment
Whilst not binding, I would suggest that TJ’ Sharron’s observations about normality – and what is normal for that person (requiring evidence as to what this means) – are particularly pertinent. Similarly, her analysis of AA’s behaviour is, I suggest, a very useful worked example of the care that is required when analysing the wishes and feelings of a person who does not communicate verbally. That is not to say that lack of verbal communication automatically means that a person is incapable of expressing wishes and feelings, but it does mean that additional care is required in establishing them with the reliability required by AGNI.
[1] A phrase from the judgment of Theis J, perhaps more accurately ‘participation in ordinary activities’ (as TJ Sharron herself put it in the concluding section of her judgment).
