Consent and the Mental Capacity Act

Message from Noir Thomas, Chief Medical Officer

Attorney General for Northern Ireland (AGNI): consent and the Mental Capacity Act

The Supreme Court judgment in Attorney General for Northern Ireland (AGNI) has changed the legal test for deciding whether someone is deprived of their liberty.

The previous Cheshire West ‘acid test’ has been replaced by a broader assessment. This looks at the person’s wishes and feelings, any objection, the purpose of the arrangements, and whether the setting is normal for them.

For Mersey Care staff, the key message is that AGNI does not reduce the importance of the Mental Capacity Act 2005 (MCA), or the need to seek valid consent wherever possible.

Key points for practice

• This judgment applies to DoLS only. For other consent-based decisions, staff should continue to seek valid consent or use the Mental Capacity Act where needed.
• Clear clinical recording remains important, especially for MCA assessments and Best Interests decisions.
• DoLS will no longer be available on Mersey Care mental health wards. In these settings, valid consent or the Mental Health Act should be considered instead.
• DoLS may still apply in Longmoor House, Brain Injury Services and Wavertree Bungalow, but a broader assessment will be needed. Further training will follow.
• Where authorisation is needed, Court of Protection welfare applications are likely to replace COPDOL11 applications in many cases.

The Mental Capacity Act remains the legal framework for decision-specific capacity assessments and Best Interests decisions. In practice, this means showing that capacity has been considered, consent has been explored, and the person’s wishes and feelings have been recorded.

AGNI places more emphasis on the person’s individual experience. It also highlights the need to distinguish between valid consent, passive acquiescence, and situations where the MCA Best Interests framework is required. Good clinical recording will help show how these issues have been considered in practice.

Patients who are positively agreeing to admission and treatment may no longer be considered deprived of their liberty. Where a patient is objecting to admission or treatment for mental disorder, the principles in the JS case and the MCA/MHA interface suggest that the Mental Health Act may be the more appropriate framework.

In summary, AGNI changes the legal test for deprivation of liberty, but it does not reduce the importance of the Mental Capacity Act 2005 in consent-based decision-making.

Training and bespoke briefings for teams impacted by this judgement will follow. For more information and support, please contact the MCA team via email MCA.DoLSTeam@merseycare.nhs.uk

_{1. Manchester University Hospitals NHS Foundation Trust v JS & Others [2023] EWCOP 33 case}