After AGNI: Six outstanding questions on deprivation of liberty

The Supreme Court’s ruling in AGNI marks a significant change in the legal framework for deprivation of liberty, replacing the previous test with a new multifactorial assessment and adopting a new approach to valid consent under Article 5. The decision has far-reaching implications for healthcare professionals, individuals and their families.

While DHSC guidance has asked local authorities and providers for a “proportionate and considered approach”, charities, campaign organisations and legal experts have raised concerns about the impact on safeguards and human rights protections.  

Some of those concerns are reflected by the Joint Committee on Human Rights, which has asked the Secretary of State to respond to six questions on the implications of the ruling.

The Committee has sought clarification on:

• the adequacy of existing safeguards;
• the consistent application of the multifactorial approach to deprivation of liberty;
• protection against inadequate assessments of valid consent;
• the prevention of discriminatory decision-making affecting disabled people;
• the implications for children deprived of their liberty;
• appropriate workforce training; and
• adequate support for families.

It has requested a response by 21 August 2026.

While commissioners and health and social care providers await further DHSC guidance, the Joint Committee’s intervention highlights the growing concern about what has been described by the disability rights charities (Mencap, Mind, and the National Autistic Society) as the “biggest rollback of disability rights in a generation”.

For now, organisations need to adopt a careful and considered approach to the transition. Our specialist mental capacity team can support clients with training and practical guidance. To discuss how we can help, contact James Wood at [email protected]

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