On 2 June 2026, the UK Supreme Court handed down its judgement in A Reference by the Attorney General for Northern Ireland [2026] UKSC 16 – now widely known as the AGNI ruling – unanimously overturning its own 2014 decision in P v Cheshire West and Chester Council & Anor [2014] UKSC 19 (‘Cheshire West’). The Scottish Independent Advocacy Alliance (SIAA) has been considering the judgement’s implications for people who use independent advocacy across Scotland, and for the organisations that provide it.
Since 2014, the “acid test” set out in Cheshire West has governed how deprivation of liberty is identified under Article 5 of the European Convention on Human Rights: a person subject to continuous supervision and control, and not free to leave, was treated as deprived of their liberty regardless of whether the arrangement was comfortable, beneficial, or unopposed.
The Supreme Court has now ruled that this approach was wrong. In its place, deprivation of liberty must be established through a multifactorial, fact-specific assessment, considering the nature, duration and purpose of restrictions, the relative normality of the setting, and, critically, whether the person is objecting to their circumstances. The Court also confirmed that a person who lacks capacity to make decisions about their care and residence may nonetheless be able to give valid consent to that confinement, provided they are able to express a view about it.
This is a UK-wide precedent, but its practical effect differs across the four nations because they authorise deprivation of liberty differently.
In England and Wales, deprivation of liberty is authorised through a dedicated statutory scheme under the Mental Capacity Act 2005 (the Deprivation of Liberty Safeguards (DoLS)) with built-in periodic review and rights of appeal. Scotland has no equivalent scheme, creating a gap. There is no separate authorisation process for deprivation of liberty under Scots law; where an adult who lacks capacity is deprived of their liberty, this is, in practice, generally addressed, if at all, through an application for welfare guardianship under the Adults with Incapacity (Scotland) Act 2000, considered by a sheriff. This gap has been recognised for over a decade: the Scottish Law Commission called for a proper deprivation of liberty framework in 2014, and the Scottish Mental Health Law Review’s (SMHLR) 2022 final report again recommended a new legislative framework, a standalone right of appeal, and non-means-tested legal aid for those deprived of their liberty and deemed to lack capacity. The SMHLR recommendations have still not been implemented.
The practical effect of the AGNI ruling in Scotland, then, is not that people lose access to a review scheme (as was in place in England and Wales) that will now apply to fewer of them – that scheme was never built in Scotland. It is that the sheriff court, via a guardianship application, remains the main route through which a deprivation of liberty gets any independent legal scrutiny at all in Scotland, and the AGNI ruling narrows what will be recognised as a deprivation of liberty in the first place. Fewer situations meeting that narrower threshold could mean fewer guardianship applications being framed around it, and fewer opportunities for a sheriff to ever consider the question.
Why this matters for independent advocacy
SIAA’s view is that this ruling does not reduce the need for independent scrutiny and support for people who lack capacity to consent to their care arrangements, it increases it, for several reasons.
Valid consent depends on a person’s views being heard. The Court’s new test turns on whether a person can express wishes and feelings about their situation, and whether they are objecting to it. But many people with learning disabilities, acquired brain injury, dementia, or communication support needs experience considerable barriers in expressing a clear view without skilled, independent support to do so. Without that support, “valid consent” risks being inferred from silence or compliance rather than from a genuinely expressed wish, the very outcome the original acid test was designed to guard against. Independent advocacy is often the only relationship in a person’s life whose sole purpose is to help that person’s own voice be heard, free from the influence of those providing their care.
Objection is now doing more legal work and it is not always visible. The judgement treats a person’s objection to their arrangements as a significant factor pointing toward a deprivation of liberty. But objection can be quiet, indirect, or expressed in ways that are easy for busy services to miss or misread – through withdrawal, distress behaviours, or repeated but unrecorded requests. Independent advocates work with a person, using a variety of accessible communication methods, so they understand their rights and choices and can share their own views.
This is a pivotal moment for supported decision-making in Scotland. The distinction the Court has drawn between legal capacity and a person’s actual wishes and feelings creates an opening to move further toward a rights-based, UNCRPD-aligned model of supported decision-making, but only if it is accompanied by strong, resourced safeguards. Independent advocacy is one of those safeguards, and arguably the most person-centred one available. This connects to Article 12 of the UN Convention on the Rights of Persons with Disabilities. Article 12 requires that support to exercise legal capacity respect a person’s own will and preferences, rather than substitute someone else’s judgement for theirs. The UN Committee on the Rights of Persons with Disabilities has already found the UK not fully compliant with Article 12, recommending in its 2017 Concluding Observations that substitute decision-making be replaced with supported decision-making across the UK. AGNI’s focus on wishes, feelings and objection sits closer to that standard than the old acid test did, but only if the support needed to exercise it, like independent advocacy, is actually there.
A legal right to independent advocacy does not guarantee it is delivered. Many people going through Adults with Incapacity processes already have a clear legal right to independent advocacy under the Mental Health (Care and Treatment) (Scotland) Act 2003, where their incapacity relates to a “mental disorder” (the term used in the 2003 Act). In practice, siloed funding streams and narrow interpretations of eligibility by Health and Social Care Partnerships often mean that right to independent advocacy is not realised for people whose primary route into the system is AWI rather than mental health legislation. AGNI raises the stakes on ensuring independent advocacy is actually accessed, not just legally available on paper.
In practice – Scotland-wide sheriff court practice note on AWI applications
The connection between the AGNI ruling and the need for independent advocacy can be drawn out in the Scotland-wide sheriff court practice note governing applications under the Adults with Incapacity (Scotland) Act 2000, which took effect on 13 July 2026.
That practice note now requires every application to set out the adult’s present and past wishes and feelings about the order being sought, insofar as these can be ascertained — and, where they cannot, to explain why not and what steps (including any support provided) were taken to try and ascertain views.
In other words, the courts are now asking, application by application, the same question this statement is built around: what does this person think, and how do we know? That is a question independent advocacy exists to help answer. Where a person has had support to express a view, including where independent advocacy has helped surface an objection that might otherwise have gone unrecorded, that engagement can now be directly relevant to how an application is assessed. Where no such support has been available, the gap is likely to be more visible to a sheriff than it would have been before.
Section 13ZA of the Social Work (Scotland) Act 1968 is also worth noting. This provision allows local authorities to arrange residential moves or other welfare decisions for an adult who lacks capacity without a guardianship application, provided -among other conditions – the adult does not object. Some local authorities’ own guidance on using it, such as East Ayrshire’s process flowchart, which already identifies independent advocacy as good practice when applying it. How 13ZA’s own objection-based test interacts with AGNI’s is not yet clear, and is something SIAA will be watching closely alongside member organisations.
SIAA independent advocacy recommendations as AGNI changes practice
As courts, local authorities, and practitioners adjust to what the ruling requires, independent advocacy needs to be recognised and resourced as part of that response — not left to catch up afterwards. These recommendations draw directly on SIAA’s own 2026 manifesto, Independent Advocacy: Voice. Rights. Independence., and set out what needs to happen for independent advocacy specifically as AGNI’s implications continue to unfold.
- Implement the Scottish Mental Health Law Review’s outstanding recommendations on deprivation of liberty and independent advocacy in full, as set out under Priority One of the manifesto, including a proper legal framework for authorising and reviewing deprivation of liberty in Scotland, a standalone right of appeal, non-means-tested legal aid, and alignment of independent advocacy’s legal definition across all relevant legislation, including the Adults with Incapacity (Scotland) Act 2000. These recommendations were accepted by the Scottish Government in 2023 and remain unimplemented; AGNI makes that delay more consequential, not less.
- Fund independent advocacy sustainably to meet the rising, more complex demand AGNI is already generating, in line with Priority Two of the manifesto’s call for minimum three-year funding cycles and its recognition that referrals are becoming more complex while funding remains static. As courts require more robust evidence of an adult’s wishes and feelings, independent advocacy organisations will be asked to do more of this work and need to be resourced accordingly.
- Build independent advocacy into the design of any AWI or LDAN legislative reform from the outset, consistent with the manifesto’s call to deliver properly on legislative commitments with adequate funding and protected independence, so that as practice keeps shifting in AGNI’s wake, supported decision-making in Scotland is backed by real, resourced access to independent advocacy rather than existing only in principle.
Next steps
SIAA will continue to monitor the implications of the AGNI ruling as further guidance and case law emerge, and will work with our membership to understand what this means in practice for people using independent advocacy in Scotland. We will also be looking to the Scottish Government’s Programme for Government for signals on AWI reform and the LDAN Bill, both of which will shape how these issues are addressed in law.
We welcome engagement from members, people with lived experience, their representative organisations and partner organisations as we develop our position further.
Further information
Scottish Commission for People with Learning Disabilities (SCLD) – Cheshire West Statement
39 Essex Chambers webinar – The End of the Cheshire West Era: The Supreme Court’s New Tests for Objective and Subjective Deprivations of Liberty and Scotland Report: Scottish reactions to AGNI
British Institute of Human Rights (BIHR) – The Supreme Court redefines how the right to liberty applies in the UK and AGNI: A practitioner’s perspective
UK Government Department of Health and Social Care – UK Supreme Court 2026 judgment on what constitutes a deprivation of liberty Guidance
Mental Welfare Commission for Scotland – Supreme Court decision brings the end of Cheshire West with immediate effect
