Deprivation of Liberty: A post-AGNI roundup

It’s been five months since the Supreme Court set out its multi-factorial approach to deprivation of liberty in the Attorney General of Northern Ireland case (AGNI), concluding that the acid test in Cheshire West was wrong (read our blog and listen to our podcast for more). Following interim guidance, statements, court cases, and more during that time, the new post-AGNI legal landscape is starting to develop. Here’s what we know…

The number of scenarios amounting to a deprivation of liberty was predicted to reduce under the new approach, and this is starting to be reflected in recent court cases. We wrote a blog on the Court of Protection's consideration of this (here) and the High Court (here). In both instances, the restrictions and restraints did not amount to a deprivation of liberty. Further cases have seemingly continued to follow this trajectory.

In particular, the reduction in scenarios amounting to a deprivation of liberty is expected to be significant in supported living environments. This is largely because of the ‘relative normality’ of such arrangements. Senior judges have confirmed that they are expecting to see far fewer COPDOL11 applications as a result. 

The advice is that:

• existing authorisations remain valid; and 
• pending applications should proceed as normal – it will be for the judge to apply the new test to these.

P’s objection to the arrangements remains a ‘key consideration', and where that is the case, it may point towards confinement.

To assist with applying AGNI in new cases, ADASS have published updated DoLS forms to reflect the changes to law – these are not formal statutory forms, but some local authorities are making use of these in lieu of anything mandatory as a helpful starting point. 

Assessing deprivation of liberty post-AGNI is clearly more nuanced, and this may lead to some inconsistencies whilst the position continues to develop and as more test cases are heard. Helpfully, some grace is expected from regulators, with both the CQC and Care Inspectorate Wales previously confirming that they will be taking a proportionate approach to regulating this (see our blog).

The Department of Health and Social Care will be issuing full guidance, but the date is currently unknown. This will no doubt be a welcome addition, but how much clarity the guidance will bring remains to be seen, given the fact-specific multifactorial nature of the new approach. 

For more complex cases, where a clear decision cannot be reached in relation to whether or not an individual is being deprived of their liberty, the Court of Protection remains the ultimate decision-maker. 

The relevance of other legal protections, such as convention rights, the Care Act 2015, the Mental Capacity Act 2005 and general safeguarding duties should not be forgotten when considering the protections of individuals who are now, following AGNI, no longer deemed to be deprived of their liberty.

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