Judge finds woman is being deprived of her liberty in care home placement that “clearly feels like a prison cell” to her

In TW v Worcestershire County Council [2026] EWCOP 54 (T2) (09 September 2026), His Honour Judge Tindal concluded that the woman’s consistent objections to her placement, her wish to return to live with her mother and the restrictions on her freedom meant the arrangements crossed the line into a true deprivation of liberty.

The judgment considered the application of the Supreme Court’s decision in Reference by the Attorney General for Northern Ireland [2026] AC 1146, known as AGNI, which departed from the ‘acid test’ approach taken in Cheshire West.

Judge Tindal said the case illustrated the practical application of the new multifactorial approach to determining whether a person lacking mental capacity was deprived of their liberty.

He said: “'....[W]hilst to the external observer, this Placement may be very far from the paradigm of confinement in a prison cell, to TW this clearly feels like a prison cell, even if she gets on well with and is compliant to some of the 'warders'. It clearly feels to TW like she is being kept there against her will and like she is not being listened to, hence her fairly forthright views expressed regularly to professionals, whether responsible for the Placement or not.

“In those circumstances, whilst I agree with [counsel for the respondent local authority] this is a borderline case, I am satisfied that it does tip over the line into a true deprivation of liberty under Art.5 ECHR, not only because of TW's objection, but on a balance of all relevant factors I have described.”

TW, who is in her late thirties, had diagnoses of paranoid schizophrenia and global developmental delay.

She had lived with her mother before a health crisis in 2024 led to her admission to hospital.

She was detained under the Mental Health Act 1983 and subsequently treated on an acute mental health ward before being discharged to her current placement in December 2024 under a MHA Community Treatment Order.

When TW's Community Treatment Order ended the following month, the placement granted an urgent DoLS authorisation under Sch.A1 MCA, reviewed by the respondent authority's expert best interests assessor in February 2025.

The best interests assessor found TW was deprived of her liberty applying the Cheshire West 'acid test' as TW was under continuous supervision and control, she was not free to leave the placement, and lacked capacity to determine where she should live.

In March 2025, a standard authorisation of deprivation of liberty was granted by the respondent authority for a period of six months. TW's standard authorisation was then extended in September 2025 for a period of eight months.

TW had previously told a best interests assessor that she was happy at home with her mother, that it felt strange living with strangers and that she did not feel free in the placement.

Following the Supreme Court’s decision in AGNI, the council reassessed whether the placement amounted to a deprivation of liberty.

Its senior best interests assessor concluded that TW was not deprived of her liberty. However, the senior best interests assessor had been unable to engage directly with TW and had relied on the case papers and information from staff.

Judge Tindal noted: “Therefore, in my judgment, the weight I can attach to [the senior best interests assessor’s] assessment - and indeed the weight the Respondent authority attaches to it - is inevitably diminished. […] It is for me to reach my own conclusion on the question of the deprivation of liberty.”

Turning to the application of AGNI, Judge Tindal said: “Whilst AGNI was perhaps unusual as it did not itself involve an actual person's factual circumstances, there is no shortage of worked examples of the correct approach in the Supreme Court's decision. After all, having explained that the MCA required deprivation of liberty to be determined under Art.5 in accordance with ECtHR case law, the Supreme Court in AGNI reviewed in considerable detail more than 30 Strasbourg cases. […] In AGNI at [203]-[205], the Court also revisited with its approach the two linked cases where Art.5 was found to apply in Cheshire West – the two sisters 'MIG' and 'MEG':

“i) MIG was essentially living in a foster placement where she was very happy, which was close to a normal home environment, even though she was under continuous supervision and control by her foster parent and not free to leave unaccompanied. The Court in AGNI held that despite this, the 'relative normality' of the placement showed that MIG was not 'confined' and in any event she validly consented to it, despite lacking mental capacity to decide on her residence under the MCA.

“ii) Similarly, the Court in AGNI considered MEG not to be subject to a deprivation of liberty in NHS-supported accommodation, again both because the circumstances did not amount to 'confinement' and in any event, she validly consented to them (despite lacking capacity to decide residence under the MCA) as she was broadly happy there despite occasional outbursts. It found MEG's living arrangements were as normal as possible in the circumstances for a disabled teenager (including attending college and a social life) and the continuous supervision and control to which she was subject (the placement was not locked but she was supervised and could be restrained) were directed to meet her care needs rather than making her a prisoner.”

Judge Tindal noted that all the cases since the Supreme Court handed down its ruling in AGNI turned on their own facts.

“Nevertheless, one can start to see a spectrum of examples from cases,” he said.

“At one end are clear examples of no 'deprivation of liberty' on the AGNI approach, such as MIG in Cheshire West (a young person happy in a foster placement) and Mustafa (a young person happy at a special school).

“Slightly less clear-cut, but still towards the same end of no deprivation of liberty are the cases of people apparently broadly settled in secure units like MEG and PK/MK.

“At the other end of the spectrum are clear examples of 'deprivation of liberty', such as the two cases before Theis V-P: RF (a person objecting to a secure placement in England well away from his family) and ST (a teenager strongly objecting to a secure unit).”

He continued: “Somewhere in between are the more borderline cases where objection was occasional and changeable (SM), or there is neither clear objection nor clear consent - P, AR and BM. The closest on the facts to this case appears to be AR, albeit with the important distinction there of a lack of clear objection to their accommodation, by comparison here to TW's repeated objection to the Placement, even if primarily directed at those external to the home rather than the care staff TW deals with on a day-to-day basis. The important thing is that these cases all illustrate the practical application in individual cases of the precedent set by AGNI.”

Judge Tindal observed that if someone actively objects to their placement - particularly if that leads to conflict and unhappiness, or potentially physical restraint - there is “clearly an element of coercion”, as they are being compelled to live somewhere they did not want to live, which points towards 'confinement'.

By contrast, if someone is actively happy in their placement, that would not only point towards 'valid consent', it would also point against their being 'confined' at all because they would not experience any element of coercion.

Turning to the element of ‘confinement’ in the present case, he said: “To use the expression so often used in Strasbourg, the type, duration, effect, and manner of implementation of TW's living arrangements are that this is a care package for TW as a disabled person lacking capacity to decide her residence at a specialist care home following her discharge 18 months ago from psychiatric hospital (which was clearly 'confinement').

“It is not short-term or temporary, but a long-term and potentially permanent placement unless the Court of Protection decides TW can return home to live with her mother as she so obviously wishes. The Placement is a particularly restricted space and has lasted a considerable period of time, may continue to do so and involves TW living somewhere she does not want to live. Whether that is enough for that to cross the line to amount to a deprivation of liberty, in my judgment, depends upon the multifactorial assessment, but with particular focus on the factors of relevance in the mental capacity field.”

He continued: “I start with the factors which point against TW being deprived of her liberty. First and foremost, I agree that the purpose of the Placement in this case is therapeutic and protective, not punitive. Secondly, I accept the Placement is 'relatively normal' for people with TW's needs and disabilities, even if not for non-disabled people. […] In my judgment, the Placement is relatively normal for someone relatively similar to TW, even though it is not a home environment. However, 'relative normality' is a relatively weak factor as TW has largely withdrawn from usual activities even for someone with her disabilities: she does not leave the Placement even with staff, she rarely engages in activities, she is frequently withdrawn and contact with her mother is highly restricted (due in part to her mother's own behaviour).

“On the other side of the balance, TW is under continuous supervision and control. […] TW is continuously monitored and indeed regularly interrupted by staff – for the best therapeutic reasons, but the point is the staff have control, not TW. The care plan – including restraint – is there to be engaged if there is an escalation in TW's behaviour.”

Judge Tindal acknowledged the case was “finely balanced” but ultimately turned on TW’s objection to the placement, observing that TW is “capable of expressing objections to her placement in a restricted care home”.

Concluding the case, he said: “TW may not be so resistant that she has tried to escape or that she has needed to be physically restrained, but routinely and regularly, especially to external professionals, TW is clearly expressing her experience of coercion in being required to stay in the Placement where she does not want to live; and of not being allowed to live with the person she wants to live with, her mother AW.

“In short, TW is experiencing coercion by being forced to live in the Placement when she does not wish to do so. Therefore, whilst to the external observer, this Placement may be very far from the paradigm of confinement in a prison cell, to TW this clearly feels like a prison cell, even if she gets on well with and is compliant to some of the 'warders'.

“It clearly feels to TW like she is being kept there against her will and like she is not being listened to, hence her fairly forthright views expressed regularly to professionals, whether responsible for the Placement or not. In those circumstances, whilst I agree this is a borderline case, I am satisfied that it does tip over the line into a true deprivation of liberty under Art.5 ECHR, not only because of TW's objection, but on a balance of all relevant factors I have described.”

Lottie Winson