At the end of July, Oxfordshire County Council v P became the first reported case to consider the decision now widely known as AGNI.
The case concerned the health and welfare of P, a young woman with diagnosed learning difficulties who had experienced significant childhood trauma. The central issue was whether it was in P’s best interests to remain in her supported living placement or return to live with her grandmother.
The AGNI decision is relevant to considering whether or not P is subject to a deprivation of liberty in either care setting applying the new multifactorial test, with no single factor being determinative although valid consent will be an important factor in the assessment.
The Court of Protection’s consideration and application of AGNI is set out at paragraphs 16-18. This covers the analysis of P’s objective confinement where the court treated locked external doors, front door and bedroom sensors, window restrictors and an inability to leave without one-to-one support as pointing towards confinement despite supported living being a “world away from a prison facility”. The court also references the “main issue about deprivation of liberty is P’s consent or lack of consent”, aligning with AGNI’s new emphasis on wishes, feelings and valid Article 5 consent.
Commenting on the decision, Alex Ruck Keene of 39 Essex Chambers emphasises that Oxfordshire is fact-specific and should not be treated as a precedent setting interpretation of AGNI. He says, “I emphasise this because it is, with respect, an application which is not entirely easy to square with the decision of the Supreme Court in AGNI. Paragraphs 16-18 … show how strong the gravitational pull of Cheshire West remains; given that the facts of P’s case demonstrate (on their face) rather fewer of the ‘multi-factorial’ components of deprivation of liberty were satisfied than did MEG’s case, it would have been very helpful had the judgment explained.”
The Oxfordshire decision demonstrates how difficult the sequencing of the multifactorial approach with a person’s wishes or feelings and valid consent is in supported living and family home settings, especially where “not free to leave” overlaps with ordinary care and support.
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