Applying the new deprivation of liberty test: latest from the courts

The facts

AR is a 25-year-old man with autism and a moderate to severe learning disability. He lives in a specialist placement which all parties accepted was able to meet his needs. 

The restrictions in place were significant. AR received 24-hour one-to-one support, two-to-one support when accessing the community and was subject to a range of environmental and behavioural restrictions, including locked doors and gates, staff-controlled access to the community, CCTV monitoring, and physical intervention/redirection where required. 

Prior to AGNI, these arrangements would have been regarded as a relatively straightforward deprivation of liberty ("DoL") under Cheshire West. The question for the court in AR was whether that conclusion still followed after AGNI. 

The decision 

The answer? It did not.

Applying the Supreme Court's revised approach, HHJ Burrows concluded that AR was not objectively deprived of his liberty. 

The judgment attempted to draw together the principles and approach that emerged in AGNI, applying them to the real life situation of AR. In doing so, the judge emphasised a number of factors which now form part of the objective assessment, including the nature of the setting, the purpose of the restrictions, the extent to which the arrangements reflect normal life for the individual concerned, and the person's own experience of those arrangements. 

Particular significance was attached to the fact that AR's placement was his home, that the restrictions existed to meet his care and support needs, and that he was able to access activities, relationships, and community life consistent with those needs.

Interestingly, whilst the Judge determined that on an objective analysis AR was not deprived of his liberty, meaning there was no DoL in respect of which it might have been possible for AR to provide his 'valid consent' (within the meaning given to that phrase in AGNI), the judge nonetheless went on to say a number of key things regarding the subjective element of new multifactorial DoL test.

Firstly, the judge indicated that AR would have been incapable of providing such 'valid consent' in any event. The Judge indicated that there was "little evidence that AR understands the nature of the choice between living at the placement and living elsewhere, the restrictions which operate within the placement, or that he has sufficient appreciation of those arrangements to make an autonomous decision either accepting or rejecting them". 

Secondly, the judge agreed with counsel that objection from anyone other the person themselves was not relevant to whether the person was deprived of their liberty. 

Thirdly, the Judge however indicated that where objection from a person's family leads to restrictions on contact, those contact restrictions themselves become a relevant factor in the wider multifactorial assessment and could, in some cases, change the character of a placement away from a home and closer to a place of detention (and therefore closer to a DoL). 

Whilst clearly seeking to apply the Supreme Court's decision faithfully, the judgment occasionally hints at the undoubted challenge facing first-instance judges - and indeed also by practitioners - in navigating a legal landscape that has altered markedly in a relatively short period of time. 

Why does it matter?

The significance of AR lies in what it says about the practical consequences of AGNI. 

The restrictions in this case were undoubtedly extensive. Yet the court concluded that Article 5 was not engaged following an objective analysis of the care arrangements in place. The Judge's approach to addressing the thorny issue of 'valid consent' for the purposes of Article 5, and applying its meaning to AR's case is also perhaps a helpful indicator of how other judges may deal with that particular issue over the coming period. It is however inevitable the AR decision will be far from the last word on that particular aspect of the new multifactorial test.

For NHS commissioners, Trusts, local authorities, and care providers, the message is clear; restrictions, supervision, and control remain relevant, but they are no longer the starting and finishing point of the analysis. The wider context matters far more than it once did.

Equally, AR provides perhaps the clearest indication to date that the number of arrangements amounting to a deprivation of liberty has very significantly reduced. Cases which would previously have required little debate, where a DoL would certainly have made out, now require a much more nuanced and complex multi-factorial assessment.

That is not to say that DoL authorisations will become redundant. Far from it. There will remain many situations where Article 5 is plainly engaged. However, the boundary line has undoubtedly shifted.

What does this mean in practice?

For organisations responsible for commissioning, providing, and reviewing care, AR reinforces the importance of looking beyond individual restrictions and considering the overall reality of a person's circumstances.

Care planning is likely to place greater emphasis on matters such as:

• The purpose underpinning restrictions

• The extent to which arrangements facilitate rather than impede ordinary life - the 'relative normality' of the arrangements by comparison to other persons with similar needs

• The individual's participation in family, social, and community activities

• The person's wishes and feelings (however they may be expressed)

• How the care regime is experienced by the person in practice

The decision also serves as a reminder that the law remains in a state of development. AR is an important early authority, but it is only one of what is likely to be a growing body of post AGNI case law. Whilst the Judge in AR expressed some scepticism that judicial guidance would emerge, what will certainly emerge over time is a body of case-law wherein the Court of Protection will apply the principles and theory of the Supreme Court's decision in AGNI, to the very real lives of persons like AR.

How we can help

We can assist with:

• Reviewing and updating organisational DoL policies and procedures in light of this judgment

• Delivering focused training on the post‑judgment position, tailored to your organisation

• Supporting case audits, particularly in relation to compliant individuals

• Advising on borderline or contentious cases