On 2nd June 2026, the Supreme Court made a landmark ruling (AGNI) that sent shockwaves through the health and care profession as it overturned a famous – and critical – piece of case law known by many as Cheshire West.
While the full impact and ramifications of this ruling are still to be felt across the sector, in this blog we would like to dwell on one particularly interesting concept that emerged: the notion of subjective consent.
According to the Supreme Court ruling, a person who lacks capacity for the decision of care and treatment can still give ‘valid subjective consent’ – including for any associated restrictions – thus not requiring independent oversight, advocacy or safeguards, as had been the case previously.
In this blog, we aim to unpack this ruling in more detail, including what it may mean for us going forward…[1]
The meaning and nature of ‘consent’
In a previous blog we explored the twin concepts of implied and informed consent.
Building on from which, there appears to be a disconnect between a person lacking legal decision-making ability for a set decision (i.e. decision for care and treatment) and then being able to give any form of ‘valid’ consent.
To dig deeper into this, let us look first at some formal definitions for these terms:
- Valid: The Collins Dictionary defines ‘valid’ this as having foundation, being based on truth, being legally acceptable, having logic or having some force or cogency.
- Consent: The Cambridge Dictionary states that consent is a permission or agreement. Meanwhile, Merriam-Webster expands this definition to say it is the voluntary agreement to an action or opinion’ going onto state ‘consent involves the will or feelings and indicates compliance with what is requested or desired’.
- Expanding upon this, an article by Sanjana Gupta (2025) highlights that it is freely given, without pressure or force, and can be taken back at any time, adding how you need to be fully informed about what you are agreeing to when giving consent’.
- Subjective: Dictionary.com describe ‘subjective’ this as pertaining to or characteristic of an individual, or placing excessive emphasis on one’s own moods, attitudes, opinions etc.
- Mental Capacity: According to the Mental Capacity Act (2005), a person’s ability to give informed consent to a specific decision at a specific time – being able to understand, retain, use and weigh the relevant information to then communicate (in any format) their response.
Taking these definitions alongside the recent Supreme Court ruling, there appears to be a quite clear and obvious disconnect.
In healthcare, valid consent is vital in all that we do; valid consent must always be obtained, that this is to be informed and voluntary. Thus, when a person is lacking capacity for a set decision at a specific time, they are logically unable to give any form of consent.
Up to this point (before the recent Supreme Court ruling), the legal framework requires that the individual’s thoughts, feelings, wishes and values are all accounted for within the Best Interest decisions made on their behalf if they lack capacity for a specific decision. At the core of this process is the principle that the individual’s ‘compliance’ (or ‘informal consent’) should not be taken for granted, as they are, by definition, a vulnerable person who may be subject to outside influence, and therefore need additional safeguards to reduce risks of being taken advantage of. Best Interest Decisions remain in operation, but according to the new ruling of AGNI, ‘valid subjective consent’ can still be provided alongside this for care and treatment decisions.
Contradictions and worrying implications
Fundamentally, there appears to be a significant contradiction (a lack of logic), in the Supreme Court ruling that suggests that a person may be legally assessed to lack capacity for care and treatment, requiring a Best Interest Decision, while equally being legally able to give ‘valid subjective consent’ for the same matter.
While it is widely acknowledged that the system of Deprivation of Liberty Safeguards (DoLS) was broken, the system still had an important role to play in helping to protect the most vulnerable in society. Without systems such as DoLS in place, how can we help reduce instances such as HL in Bournwood Gap, abuse experiences such as Whorlton Hall, Winterbourne View, Edenfield’s, St Andrews, Runcorn, Grove house and Stafford amongst others? Let alone other specific examples seen through Court of Protection cases and those through the Ombudsman.
What could the ruling mean in practice?
To help illustrate these points of question for the new ruling, we would like to provide a few scenarios for reflection, based on real-world cases we have encountered over the years:
- An elderly person with moderate dementia is living in the community. One day they receive a cold call offering them a new telephone contract. The elderly person happily provides their details to the salesperson. However, at their next home care visit the elderly person struggles to describe what they have signed up to. They are aware that they had a call with someone who was ‘very nice’, but cannot recall the context or outcome of the call. Did they give ‘valid consent’ for the new phone contract?
- A person with cerebral palsy likes to walk to process information, further enjoying seeing what their housemates are doing around the supported living home where they reside. Their gait is uneven and has a low-moderate risk of falls. This person has been ‘positively encouraged’ to sit in a tilted chair and a table has been placed in front of them, blocking any effort to sit up and stand. They did not verbally decline to sit there, nor are they presenting as distressed. Is this ‘valid subjective consent’?
- A young person had a road traffic accident, resulting in a significant traumatic brain injury with paralysis in their limbs. They are fed via a PEG feed and reside in a nursing home. In the nursing home they are frequently kept lying in their low-profile bed, with no option to transition to their wheelchair, or given options for engagement beyond watching films. They can only communicate through closed questions by either blinking or making minor head movements. They are not showing any active forms of objection as they are physically unable – but equally have not been asked. Are they showing ‘valid subjective consent’ to their care and treatment?
- A person who is experiencing a manic period of their bipolar disorder is trying to leave their residence, and so is attempting to open each and every door of their residence as they try and go outside. A staff member approaches, offers a cup of tea and time to talk. They follow the staff member, the staff member does not feel they are objecting, as with reassurance and support, they ‘stop exit seeking’. Are they showing ‘valid subjective consent’ to their care and treatment?
- A woman living in a care home has an appointment with a health care professional. As they speak to the professional the topic of ‘home’ is brought up. The woman then starts to cry and voice that they want to go home. It later becomes apparent that this is a regular occurrence for the person in question, however care home staff usually reassure her and distract her with a cup of tea. According to care staff, the woman in question ‘doesn’t understand her health needs’, and so her voiced desire to go home is not a ‘real’ objection, as she has a cognitive impairment. Is this a valid subjective consent to their care and treatment?
Closing comments
Each of these scenarios is from a real-world case we have encountered over the years. These are not infrequent cases – there will be hundreds or more of similar such cases occurring on a daily basis. For each case, we must ask: is the vulnerable person having their rights protected and upheld? From which, we might well ask: are Human Rights conditional?
Unfortunately, it seems the recent Supreme Court seems to think they are…
Updates:
Please see further updates following the ruling of AGNI here:
Department of health and social care – initial guidance
[1] A note of caution: the full extent of the impact of the 2nd June 2026 Supreme Court ruling (AGNI) has not yet been felt. In this blog, we offer only our personal reflections on the matter, with reference to examples seen in practice. At this stage, we do not have definitive answers to offer, as quite honestly, at this stage, there are none.