BIHR’s Senior Human Rights Officer, Annie Smith, is a social worker and best interests assessor. Before working at BIHR, she was an advanced practitioner in a Mental Capacity Act Team for a local authority, completing Deprivation of Liberty Safeguards assessments and providing training and advice to social care staff. Annie is now BIHR’s subject expert on health and care.
The Supreme Court’s AGNI ruling represents a notable shift in human rights law, with implications for the health and social care sector that we will likely be trying to understand and navigate months, perhaps years to come.
I became a Best Interests Assessor (BIA) in 2018, trained to complete assessments under the Deprivation of Liberty Safeguards (DoLS) scheme. This work involved assessing people’s capacity to decide where they live and the care they receive, understanding their wishes and feelings, consulting with people involved in their lives, and providing independent scrutiny to ensure care arrangements were in their best interests and with as few restrictions as possible. Where things needed to change, I could put the wheels in motion to explore ways in which the person’s quality of life could be improved, ensuring independent advocacy and access to courts were made available.
The Supreme Court’s 2014 Cheshire West judgment established the Acid Test for when someone is deprived of their liberty – if they are subject to continuous supervision and control, and they are not free to leave. This preceded my training so, like many BIAs, my role centred on capacity assessments and best interests decisions, with relatively little uncertainty about whether someone was being deprived of their liberty. The bar for what constituted a deprivation of liberty was low, meaning many were eligible for safeguards under Article 5 of the Human Rights Act, the right to liberty.
That changed on 2 June 2026, when the Supreme Court abolished the Acid Test, replacing it with a multi-factorial test. The bar has been raised again, with fewer people now eligible for DoLS, and BIAs will be just one of many groups of health and care professionals having to rethink their approach, after 12 years of relative clarity.
A flawed system
Clarity, however, does not mean the system was working well before. Cheshire West created significant challenges in the DoLS system. During 2024-25, only 21% of applications for DoLS were completed within statutory timeframes and almost 119,000 remained uncompleted.
To help systems to cope with their DoLS applications, ADASS developed a priority tool. We used this to try and secure a quick response where human rights safeguards were needed urgently, such as if a person was objecting to their care arrangements or they were subject to high levels of restraint. In 2019, the UK Government set out plans for a new streamlined Liberty Protection Safeguards (LPS) scheme, which has never been implemented*. In 2024, with the system struggling on, underfunded and overwhelmed, the Care Quality Commission called for urgent DoLS reform, and Age UK deemed the backlogs ‘a scandal impacting some of our most vulnerable citizens’.
Casting the net of protections wide, as Cheshire West did, may in theory have seemed like the human rights solution, but in practice we have to acknowledge that it created a system that couldn’t cope, with pending DoLS authorisations sometimes leading to human rights risks.
A safeguards gap
Despite the long waiting times and backlogs, however, I know that DoLS assessments have been a vital safeguard for people who may lack capacity to make decisions about their care arrangements and are restricted to varying degrees by those who support them. The DoLS process offers a fresh pair of eyes, ensures people have a say over their lives, and acts as a protective factor against institutional harm.
The Department for Health and Social Care (DHSC) has stated in its recent guidance that the AGNI ruling is likely to ‘significantly reduce the number of deprivation of liberty authorisations’. This gives me cause for concern, because although the DoLS system was flawed, it was something. What we have now is a safeguards gap which urgently needs to be filled, leaving many people with fewer formal opportunities for independent review and challenge.
The Supreme Court suggested that people no longer eligible for DoLS will remain protected by other safeguards: the Mental Capacity Act’s statutory principles, local authorities’ safeguarding duties, annual care reviews, and the right to respect for private and family life (Article 8 of the Human Rights Act).
While those safeguards exist in principle, I worry about how effective they are in practice. Having delivered training on these laws for nearly eight years, I know that misunderstanding and insufficient training are widespread, holding them back from being properly implemented. On a recent BIHR programme, over a third of participants told us they had never had formal human rights training before, highlighting the gap between the law and everyday practice.
The Supreme Court has assumed that other laws will pick up the pieces, without engaging with the people who are living and breathing them. And even if this was the case, there are still many gaps and unanswered questions.
What now?
Part of me wonders if we have ended up with an over-reliance on the DoLS system to bring the human rights-based perspective, when actually almost all health and care professionals involved in a person’s care have the same legal duties to respect, protect and fulfil people’s rights at every point in their journey to a restrictive care setting. The ambulance driver, the hospital matron, the locality social worker, the care home manager, the care inspector.
This landmark ruling could represent an opportunity to build a system in which human rights-based approaches to care become business as usual, where less restrictive options are always proactively considered, and where the person’s voice is always heard. Comprehensive alternative safeguards must of course be available as a backstop where things do go wrong, but the DoLS scheme is not the only place where human rights matter.
The other part of me recognises that this will require time, investment, and in some cases, culture change. My hope is that, as policymakers and practitioners work through the consequences of this judgment, the human rights of those affected remain at the centre of every decision. If AGNI exposes gaps in our safeguards system, it must also be the catalyst for closing them.
*In October 2025, DHSC said they would launch a consultation on Liberty Protection Safeguards in 2026, however there was no mention of this in their recent guidance following this ruling.