8 June 2026
Almost a week on from the long-awaited decision in AGNI, the legal world is brimming with various efforts to digest and understand the practical implications of the 81 page decision. What is clear, from both the judgment and the helpful note for “X Judges” (nothing to do with the social media platform previously known as Twitter) by Carolyn Hilder, dated 2 June 2026, is that the question as to what amounts to a deprivation of liberty is now much more complex.
The simple question or “acid test”, as formulated by Baroness Hale, as to whether a person is objectively deprived of their liberty was whether:
- they were under continuous supervision and control and
- not free to leave.
The answer to those questions is still relevant but answering yes to them both is no longer means a person is deprived of their liberty. Instead, a multifactorial evaluation is now required with the starting point of the “paradigm of a prison cell”.
So, what does that mean for people in the criminal justice system?
Before answering that, it might be helpful to think about impact of Cheshire West on people in the criminal justice system in the last decade.
The leading judgment is another by Lady Hale, Secretary of State for Justice v MM [2018] UKSC 60, in which it was determined that the Mental Health Act had not contemplated that a person could be discharged under its auspices to a deprivation of liberty as defined by Cheshire West. As a consequence, and following the case of Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust v EG [2021] EWHC 2990 (Fam), there was no legal mechanism other than extended s17 leave for capacitous restricted patients to be discharged to a deprivation of liberty. The Ministry of Justice has described this situation in official guidance as follows:
“There are some patients who would remain indefinitely detained in hospital (either on the ward or on long term community leave) without supervised discharge. This is not an acceptable position when discharge is possible.” MoJ Guidance 2026
To remedy this, the Mental Health Act 2025 introduced a new mechanism referred to in policy as “supervised discharge”, which essentially enables a person to be discharged from a restricted hospital order by the mental health tribunal to a condition that deprives them of their liberty provided certain conditions are met. Section 73(2)(c)(ii), which came into force on 18 February 2026, allows for supervised discharge to a deprivation of liberty condition where the criteria for conditional discharge are met AND the Tribunal:
“is satisfied that conditions amounting to a deprivation of the patient’s liberty would be necessary for the protection of another person from serious harm if the patient were discharged from hospital, and is also satisfied that for the patient to be discharged subject to those conditions would be no less beneficial to their mental health than for them to remain in hospital.”
Similarly, one strain of thought is that a person may not be able to be legally released to a deprivation of liberty under criminal justice licence conditions. There is also, of course, the ancillary concern that a person who requires so much supervision in the community might not meet the new stringent public protection test set out in the Victims and Prisoners Act 2024 required for those being released by the Parole Board.
However, this is all predicated on the classic Cheshire West definition of what amounts to a deprivation of liberty.
Surely, the new definition, which is clearer on what is not a deprivation of liberty than on what is one, will have profound implications for those involved in the criminal justice system.
First, it is unclear when, if ever, the new criteria for a “supervised discharge”/ condition amounting to a deprivation of liberty might ever now be required: the package would have to be close to the paradigm of a prison cell or, by extension an secure hospital, and amount to an arrangement which the person was unhappy with, which would make it hard to see how it would be “no less beneficial to their mental health than for them to remain in hospital.”
Second, for those not eligible for supervised discharge, but being released on licence from prison or hospital, the previous position that, for incapacitious patients, there would need to be a DOLS standard authorisation in place or a Court of Protection order in parallel is likely to be no longer necessary unless the package is close to prison and one the person is unhappy with.
When it comes to capacitious patients who are consenting, it is hard to see what might amount to a deprivation of liberty.
Therefore, the only questions that remain is whether such packages comply with the requirements of Article 8 – i.e. that they are necessary and proportionate and, critically, whether or not the person is likely to comply with them and, if not, whether any non-compliance is likely to be picked up and dealt with before harm occurs.
The real worry is that, as so often occurs when legal processes fade away, minds will cease to be concentrated on the need to maintain and fund care packages. The Government has been granted its wish in accordance with its submissions in AGNI, but this is a paradigm case of being careful what you wish for. If we want to keep all our citizens safe and well, then there will need to be enhanced mechanisms to ensure that care packages are fully funded and maintained, and that there are mechanisms to ensure people subject to them and their friends and allies are provided with appropriate legal and advocacy support to keep them under review. To that end, it is surely time to make sure that legal aid for community care law is properly funded.