Less than two weeks on from the Supreme Court’s decision in AGNI Reference [2026] UKSC 16, the Department of Health and Social Care has issued its first piece of guidance.
It is not a comprehensive framework and does not answer many of the difficult questions raised by the judgment. However, it signals how organisations are expected to respond.
Immediate effect but continuing uncertainty
The guidance makes clear that the new approach to deprivation of liberty applies immediately. There is no pause while systems catch up. At the same time, it acknowledges that this is a period of adjustment and encourages a proportionate and considered response. That tension will be familiar to anyone working in this space. The underlying legal test has shifted overnight but the operational reality has not.
From rules to judgment
The guidance reflects the fundamental shift brought about by the Supreme Court’s decision. With the “acid test” no longer reflecting the law, it sets out the evaluative, multifactorial approach required by the judgment.
Practitioners are directed back to first principles: the nature and effect of the restrictions, how they are implemented, the overall context of the placement and how far it resembles or departs from the paradigm of detention. The result is a return to structured professional judgment, with less reliance on clear rules and greater room for disagreement in more complex cases.
Valid consent moves to the centre
The concept of valid consent sits at the heart of the guidance, as it does in the judgment itself. The key message is that a lack of capacity under the Mental Capacity Act does not automatically mean an absence of consent for Article 5 purposes.
The guidance also underlines the risks of oversimplification. Compliance cannot be taken at face value. The focus must be on whether the individual has a sufficient understanding of their situation and is able, in some meaningful way, to express acceptance of it.
Where there is doubt, consent cannot simply be inferred. That places a clear emphasis on careful assessment and, in particular, robust evidence.
Objection as a key indicator
The guidance is particularly helpful in emphasising the role of objection. It makes clear that this is not confined to verbal protest, resistance to care, attempts to leave and the use of restraint or sedation may all be relevant.
While this provides useful practical direction, it also brings into focus a familiar difficulty: distinguishing true objection from distress or behaviour arising from an underlying condition. That distinction is unlikely to be straightforward, particularly in more complex cases.
Fewer cases but harder questions
In time, the expectation is that fewer arrangements will fall within Article 5 and the guidance reflects that direction of travel. In the immediate term, however, the emphasis is on caution. Where there is uncertainty, existing routes to authorisation, whether through DoLS or the Court of Protection, remain available and should continue to be used.
For practitioners, this is likely to mean a shift in the type of work rather than a simple reduction. The more routine cases may fall away but what remains will be those where the evidence is unclear, the presentation is complex or the stakes are higher.
Focus on process and recording
Perhaps the most practical message from the guidance is the importance of process. Organisations are expected to update policies, train staff and review existing authorisations. Just as importantly, they are expected to record clearly how decisions are being made.
In a legal landscape that has moved away from bright line rules, the quality of reasoning and documentation will become increasingly important. That is likely to be critical both in managing risk and in withstanding scrutiny.
A shift in direction, not the final destination
The Supreme Court has reset the framework for deprivation of liberty. The DHSC guidance offers an early steer on how that framework should be applied in practice.
However, it is only a first step. Further guidance, and inevitably further case law, will be needed to bring clarity to some of the more difficult issues particularly around consent, objection and how these are assessed in more complex cases.
For now, the position is one of careful transition. The law has changed and practice must follow but it is clear that judgment, rather than formula, will be doing much of the work in the meantime.
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