Understanding the impact of the AGNI judgement: A person-centred approach at Social Return

​The legal framework surrounding Deprivation of Liberty Safeguards (DoL Test) is evolving, bringing an important shift in how professionals assess whether someone is being deprived of their liberty.
 
At Social Return, we welcome guidance that places emphasis on the individual, their understanding of their own circumstances, and ensuring that every person’s situation is considered on its own merits. We believe the focus should always remain on the individual and what matters most to them.

What was the Acid Test?

For many years, professionals relied on what became known as the Acid Test. The Cheshire West 2014 judgment concluded that someone is confined if they are under continuous supervision and control and are not free to leave. It proceeded on the basis that, if someone lacks mental capacity to consent to their care and living arrangements under MCA 2005, they cannot give valid consent to their confinement. 
 
While this provided a clear legal framework, it may be that it did not always capture the complexity of an individual’s lived experience

What has changed?

The new guidance encourages practitioners to look beyond these two questions. Although supervision, control and freedom to leave remain relevant considerations, they are no longer viewed in isolation. Professionals are now encouraged to consider a much broader picture. We must look at the person’s whole situation, including:
 

• What restrictions are in place?
• How long have they been there?
• What is daily life like?
• How restrictive is the placement compared to ordinary life?
• What is the purpose of the arrangements?

 
The person does not need legal mental capacity to make accommodation decisions. Therefore, we must also ask:
 

• Do they know where they are living?
• Do they understand what is happening around them?
• Can they express views about their situation?

Why individual assessment matters

At Social Return, this reinforces something that has always been central to our practice: every client is different.
 
No two people have the same needs, experiences or wishes, so every assessment should consider the whole person rather than simply applying a legal formula. Importantly, someone appearing settled should never automatically be interpreted as consenting to their situation.
 
The key is understanding the individual, rather than making assumptions.

Looking beyond acceptance

One area we are paying particular attention to is the difference between accepting a situation and truly understanding the available alternatives.
 
For example, one of our clients lives in a care home and had previously been subject to a DoL safeguard authorisation.
 
When reviewing the case against the new guidance, the client was able to explain where they lived, understood that they were living in a care home, recognised the support they received, and consistently expressed that they felt safe and settled there.
 
At first glance, this might suggest that a DoL may no longer be required.
 
However, our role is not to stop there.
 

• It is equally important to explore whether the person genuinely understands the other options available to them.
• Could a different living arrangement provide greater independence?
• Have alternative options been discussed in a way that the individual can understand?
• Is their agreement based on an informed choice rather than simply becoming accustomed to their current circumstances?

 
These are important conversations that deserve careful consideration.

A thoughtful and balanced approach
​
As the legal landscape continues to develop, we are reviewing clients who currently have DoL safeguards in place against the new guidance.
 
Some individuals may continue to require these safeguards because the restrictions remain appropriate and necessary. Others may need their circumstances reconsidered.
 
What is important is that no assumptions are made. Every client deserves an individual assessment that carefully considers their understanding, wishes, feelings and lived experience.
 
Ultimately, it is too early to know if the changes will be positive or negative but perhaps it presents an opportunity to move away from a one-size-fits-all approach. There may be less oversight of individuals' care and accommodation arrangements in some circumstances, but whether this is positive for the person or not will depend on those circumstances, the support available to them in the process, and how the guidance is applied.